In light of recent guidance by the National Labor Relations Board (the “Board”), non-union employers should review the “at-will” language found in their handbooks (and many standalone policies) to make sure it does not constitute an unlawful waiver of an employee’s right to engage in union activity.
By now, it should come as no surprise that the Board has an interest in non-union workplaces. From promoting a mandatory workplace posting requirement to challenging seemingly innocuous social media policies, the Board should be on the radar screen for all employers. Most recently, the Board has weighed in on at-will disclaimers found in most handbooks or manuals. Such disclaimers typically explain that the employment relationship is not a contractual one, and the employer or employee can end employment at any time for any reason so long as that reason is not unlawful.
Earlier this year, an administrative law judge (“ALJ”) in an unfair labor practice case found the following at-will acknowledgement unlawful: “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” The ALJ decided the statement would lead employees to believe they could not unionize, thereby, “chilling” their rights under the National Labor Relations Act (the “NLRA”). The case settled before the Board had an opportunity to address this language.
The Board’s Division of Advice (which provides guidance to the various Regional offices throughout the United States that take in unfair labor practice charges) recently issued memoranda that found two at-will clauses lawful. The first clause stated that the at-will relationship only could be changed by the employer’s president, and the other clause said that no representative of the employer could enter into an agreement contrary to the at-will relationship. The Division of Advice explained that the first provision acknowledged that the company president could change the at-will relationship, and the second provision did not prohibit an employee from trying to change the at-will relationship. It distinguished the ALJ’s decision noted above by emphasizing that the language in that case involved an acknowledgment that used the personal pronoun, “I,” which the Division of Advice interpreted as an unlawful waiver of an employee’s right to engage in union activity. The Division of Advice has instructed the Regional offices to direct unfair labor practice charges involving at-will language to it. For now, employers may be best suited not to dot their “I’s,” but to delete them.
James J. La Rocca is an Associate in the Gibbons Employment & Labor Law Department.