NLRB Eyes At-Will Policies

In recent decisions, the National Labor Relations Board has focused scrutiny on employers accused of violating union and non-union employees' rights in written policies containing "at-will" clauses.

Wednesday, December 12, 2012
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While the National Labor Relations Board's recent actions -- and the current political climate -- indicate a heightened vigilance for protecting employee rights, the Board is providing guidance for employers navigating this developing landscape, specifically the NLRB's position on "at-will" clauses.

Work rules and policies that explicitly prohibit protected union or concerted activity violate the National Labor Relations Act. Even policies that employees might interpret as such have been found to be unlawful, which leaves room for concern, according to some legal experts.

In the midst of what the Board itself is calling a "developing area," the NLRB's Acting General Counsel Lafe Solomon recently released an analysis of two "at-will" clauses that were found to be lawful.

In the two cases, companies faced allegations that their handbook wording defined "at-will" employment so broadly that employees might feel they could not engage in protected activity.

A handbook by Rocha Transportation in Modesto, Calif., advised drivers that their employment is at-will and may be terminated at any time. "No manager, supervisor or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing."

Because the clause explicitly states that the relationship can be changed, employees would not reasonably assume that their NLRA rights are prohibited, according to an Oct. 31 NLRB press release, which outlines the cases and NLRB advice memos they prompted.

The second example involved Mimi's Café in Casa Grande, Ariz., where the company's Teammate Handbook description of at-will employment includes the sentence: "No representative of the Company has authority to enter into any agreement contrary to the foregoing 'employment at will' relationship." The statement in question is not unlawfully broad, according to Solomon's release on the advice memos. His release says the restaurant's written policy does not violate the Act because "the clause does not require employees to agree that the employment relationship cannot be changed in any way, but merely highlights that the employer's representatives are not authorized to change it."

The "at-will" clauses in focus in these and other recent cases put the spotlight on the NLRB's more aggressive position on employee rights, according to Cleveland-based attorney Marc Bloch, a partner in the labor and employment group of Walter & Haverfield. Bloch says the Board's stance likely will continue to lean toward protecting union rights in light of the recent presidential election results.

"The NLRB has been wrestling with the fact that the union movement is at an all-time low. Consequently, it has rediscovered Section 7 of the act which protects union or non-union protected concerted activities," he says. "Most of the recent Obama era cases have their genesis from this section of the National Labor Relations Act."

Bloch says that other recent cases have found written policies to be unlawful because they indicated that an "at-will" status never could be changed.

"The policy that has caused much consternation contained a clause that the policy could never be altered. Arguably that meant even through union representation," he says.

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Concerned employers could review any "at-will" clauses to ensure that the wording is in line with what the NLRB has said is acceptable, Bloch says.

"There is not much to worry about regarding this specific issue. A quick change in the language will suffice," he says. "The greater worry is that the NLRB is seeking to do two things: Try to foster unionization, and absent that possibility, become a 'go-to' organization for non-union employees."

Heather Sager, a San Francisco-based partner in the labor and employment practice group at Drinker Biddle & Reath, says human resource leaders should be careful of any "at-will" language.

"The lesson from all of the recent Board advice and rulings is to examine all policy communications with a critical eye toward whether they could possibly be read to restrict an employee's rights to discuss the terms and conditions of his or her employment with other employees [or with management]," she says. "If there's even a potential the language could be read in that way, you should consider a revision. I don't think this type of focus has historically been applied in a non-union workplace, and so I think that's probably the largest change for HR. We now have to think of even non-union workplaces as coming under Board scrutiny."

Bloch says he anticipates the pressure on employers will continue under the Obama administration.

"This administration is bound to make the employment situation 'fair.' Consequently, employers must not only make sure that they treat all employees in an even-handed manner, maintain records of such, be vigilant for violations, or possible violations, of discrimination laws; but also be aware that the NLRB is seeking to become the guardian of both union and non-union employee rights in the American workplace."


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