JOB CITES: Check your employment at-will policy, it may be violating the law

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By Warren Buliox

Recently, the National Labor Relations Board has taken a stance against employer policies that foreclose any possibility of altering the at-will employment relationship.

Such policies, according to the NLRB, are unlawful under the National Labor Relations Act, which prohibits employers from “interfere[ing] with, restrain[ing], or coerc[ing] employees in the exercise of the rights guaranteed” under the act. The rights contemplated by the NLRA include the right to engage in union-related activities (such as forming or assisting a union) and the right to “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” These rights apply to all employees, whether unionized or not.

In American Red Cross and Lois Hampton, 28-CA-23443 (Feb. 1, 2012), the NLRB Phoenix Regional Office issued a complaint and notice of hearing against American Red Cross Arizona Blood Services. The complaint contended, among other items, that Red Cross violated the NLRA by requiring employees to agree in an employee handbook acknowledgement form that their at-will employment relationship with Red Cross could not be altered. The language at issue provided: “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.”

After a hearing on the matter, an administrative law judge for the NLRB agreed with the Phoenix Regional Office and found the handbook language to violate the act. In so holding, the ALJ noted that “[f]or all practical purposes, the clause in question premises employment on an employee’s agreement not to enter into any contract, to make any efforts, or to engage in conduct that could result in union representation and in a collective-bargaining agreement, which would amend, modify, or alter the at-will relationship.” This, according to the ALJ, had the effect of chilling employees from exercising rights under the NLRA.

In June, the NLRB’s Acting General Counsel, Lafe Solomon, weighed in on the issue. In public comments made at a bar association meeting, Solomon advised that policies and/or provisions that have the effect of curbing an employee’s ability to change the terms and conditions of employment (including the at-will status of employment) may violate the NLRA by restricting the ability to participate in activities, such as union organizing, protected by the act.

In light of all of this, the million-dollar question (and concern) for many employers became what, if anything, could qualify for the NLRB as a lawful employment at-will policy under the act.

In a series of advice memoranda addressing employment at-will policies, the NLRB Office of General Counsel provided guidance on the issue by identifying employment at-will language it considered lawful under the act. In the first of two advice memorandum (Rocha Transportation, 32-CA-086799), the NLRB examined the following employment at-will provision:

“Employment with Rocha Transportation is employment at-will . . . . 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.”

In the second memorandum (SWH Corp. d/b/a Mimi’s Café, 28-CA-084365), the NLRB considered the following policy language:

AT-WILL EMPLOYMENT

The relationship between you and Mimi’s Café is referred to as ‘employment at will.’ . . . No representative of the Company has authority to enter into any agreement contrary to the foregoing ‘employment at will’ relationship. Nothing contained in this handbook creates an express or implied contract of employment.”

In both cases, the NLRB said the policies at issue did not violate the NLRA because they could not be reasonably construed as restricting activity protected by the act.

The provisions did not restrict or limit in any way an employee’s ability to seek to change the at-will status of the employment relationship through union organizing or other activities protected by the act. Rather, both policies simply restricted representatives from each respective company from altering the employment at-will relationship. The employee remained free to work to change his or her working conditions through activities protected by the act.

The lesson in all of this for employers? Take a close look at your employment at-will policies and ensure that they cannot be reasonably construed as interfering with or otherwise “chilling” an employee’s ability to exercise rights under the act.