By George J. Miller
In July of this year I posted on this blog that the NLRB’s Acting General Counsel is beginning to scrutinize employers’ at-will employment policies. At that time I reported about an NLRB administrative law judge’s decision that an at-will policy which said that the at-will relationship could never be altered violated the National Labor Relations Act (NLRA), because employees could reasonably construe it to prohibit them from exercising their right under the NLRA to attempt to obtain union representation and negotiate a collective bargaining agreement or otherwise to advocate concertedly for a change in the at-will relationship.
On October 31st, NLRB Acting General Counsel Lafe Solomon released two memoranda from his office’s Division of Advice which analyze at-will employment clauses in two employee handbooks and find that both are lawful under the NLRA. Together with the earlier case, they provide a guide for employers on how to write these policies so that they will withstand NLRB scrutiny. In the handbook of trucking company Rocha Transportation, the clause advised drivers that their employment is at-will and may be terminated at any time. It said that, “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.” It continued: “Only the president of the Company has the authority to make any such agreement and then only in writing.” The Division of Advice Memo notes that this clause explicitly states that the relationship can be changed, and so employees would not reasonably assume that they were prohibited from exercising their NLRA rights.The other memo concerned a case involving Mimi’s Café in Casa Grande, Arizona. The Teammate Handbook description of at-will employment at Mimi’s Cafe’ includes the sentence: “No representative of the Company has authority to enter into any agreement contrary to the foregoing “employment at will” relationship.” The Advice Memo found this was not unlawfully broad 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.
According to an NLRB press release, “[t]he Advice Memos are provided as guidance for employers and human resource professionals in a developing area that has drawn considerable attention recently.” The press release concluded: “Because Board law in this area remains unsettled, the Acting General Counsel is asking all Regional Offices to submit cases involving employer handbook at-will provisions to the Division of Advice for further analysis and coordination.”
Any non-union company which has an employee handbook and might find itself the target of a union organizing campaign should carefully scrutinize any and all at-will policies in the handbook. If a union organizing campaign begins, it is certain that the union will review the employee handbook and will file an unfair labor practice charge at the NLRB if the at-will policy is improperly worded. Other policies which are vulnerable to attack are confidentiality, social media, union-free, off duty access to property, no solicitation/no distribution, conflicts of interest and outside employment. Unlawful policies must be rescinded or reworded, and employers must notify employees in writing that they have done so, that they will not maintain or enforce such unlawful policies, and that they will not violate the NLRA in any like or related manner. Thus, if the union is successful in attacking these policies, that could bolster their image in the eyes of the employees and influence the outcome of the organizing campaign.