Are you sure your Managerial Employees are exempt from unionization under the Illinois Labor Relations Act?

The First District Court of Appeals recently had an occasion to determine if attorneys working for the Illinois Commerce Commission are exempt managerial employees under the Act.  (American Federation of State and Municipal Employees (AFSCME) Council 31 v. State of Illinois, Illinois Labor Relations Board, and Department of Central Management Services (Illinois Commerce Commission), 2014 IL App (1st) 130655)

Surprisingly the Court reversed the decision of the Illinois Labor Relations Board and found that two out of three of the disputed attorneys were not managerial employees under the Act.  The decision was a surprise given the First District opinion in Salaried Employees of North America (SENA) v. Illinois Local Labor Relations Board, 202 Ill.App. 3d 1013 (1990).  In SENA the court found all of the attorneys in the Chicago Law Department to be exempt managerial employees and excluded from the bargaining unit.  The court in SENA said that the Law Department attorneys should not be placed in a position of requiring them to divide their loyalty between the employer and the collective bargaining unit.  The court went on to find the attorneys had the authority to recommend changes in the manner in which the city operated.

Based on the SENA decision one might think that all public attorneys would be considered managerial employees. Not so fast.  In reviewing the record developed in the ICC case the Court found that one attorney had 98% of his recommendations followed by the ICC while the other attorneys rarely had their recommendations followed, or rarely made recommendations.  The court found this evidence determinative under the test for managerial status.

A person is a managerial employee if he or she is (1) engaged predominantly in executive and management functions and (2) charged with the responsibility of directing the effectuation of such management policies and practices.

Importantly the Court rejected AFSCME’s argument that an employee must spend the preponderance of time in managerial functions.  The significance of the function performed is more important than the time spent.  Also, the employee must be responsible for or have an impact on the effectuation of management policies in the workplace

Employers should review job descriptions and actual job performance to make sure managerial employees are engaged in management functions and have a hand in effectuating management policies.  Don’t be surprised by a court decision finding that your exempt managerial employees are not truly exempt.