NLRB Clarifies Stance on Employment at Will Policies
The National Labor Relations Board (“NLRB”) continues to scrutinize employment at will policies, but that scrutiny seems to be more even-handed than anticipated. Employers often include “employment at will policies” in their handbooks to avoid claims that an employment contract exists where none was intended. These provisions normally state that only a top executive of the company can alter the at-will relationship, and only in writing. NLRB scrutiny of these policies began when an administrative law judge (“ALJ”) struck down the American Red Cross Arizona’s employment at will policy. Comments by Acting General Counsel Lafe Solomon at the Connecticut Bar Association’s annual meeting implied that the NLRB would view such provisions as violating the right of employees to participate in the protected, concerted activity of seeking to modify the at-will relationship.
Recently, however, Solomon opined that many employment at will policies do not violate the National Labor Relations Act (“NLRA”), the law safeguarding employees’ rights to engage in protected, concerted activity. In addition, Solomon issued two “advice memoranda” in which he considered two employment at will policies and found both valid. One policy explained that managers, supervisors, and employees lacked authority to change the at-will relationship and only the company’s president could do so. The other stated that no company representative could change the at-will relationship. The latter policy is potentially problematic in that it implies that under no circumstances, including unionization, could any company representative enter into a collective bargaining agreement that affected the employment at will relationship. While the NLRB’s own advice memorandum approved this policy, the advice memorandum is not binding, and an ALJ could rule otherwise.
The NLRB’s advice memorandum confirms the Arizona ALJ’s reasoning in one important respect. Policies that use the pronoun “I” are more likely to be found unlawful. “I promise,” “I waive,” and “I understand” could all lead to the conclusion that the employee is waiving rights under the NLRA. Instead, employers should draft their policies to state what the company will not do. For example, an employer can state that the company will not allow anyone but the president to bind the company. An employer can also state that changes to the at-will relationship must be in writing. The employer must choose its words with care, but the NLRB’s recent actions suggest employment at will lives to see another day.
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