The Board’s excruciatingly close scrutiny of employer policies continues as the agency looks for opportunities to expand its juridiction by rooting out all evil lurking in handbooks and other written employment policies. The NLRB has taken the position that certain “at-will” language in handbooks, language that in various forms exists in virtually every private employer’s handbook in the United States, is unlawful because an employee might interpret such language as restricting his or her rights under the National Labor Relations Act.
The implications of this new tack taken by the Board are interesting. These at-will policies have been in handbooks for years. In those same years literally thousands of representation petitions have been filed, presumably the vast majority of which involved workplaces with at-will policies in some form or another. The Acting General Counsel seems to have concluded, on his own, that more organizing or concerted activity would have taken place without the existence of such policies. Or, perhaps too that such organizing might have had a different result had the “at-will” language not been included.
This issue caused some stir earlier this year when an NLRB Administrative Law Judge issued a decision in American Red Cross, Arizona Region, ALJD Case No. 28-CA-23443 (February 1, 2012) . In that case, the ALJ decided that the employer’s handbook acknowledgement language of “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way” violated the Act because employees might interpret the phrase as meaning they were agreeing to not change the “at-will” status by seeking a union. That case settled before the Board could evaluate the language, and so it is not much in the way of precedent. However, the attempt to attack these policies has caused great concern that such a fundamental aspect of employer policies suddenly could be rendered unlawful.
Further clues about the direction of the agency’s analysis of “at-will” policies were recently disclosed. It seems the agency definitely is focused on statements where the employee appears to personally, as in “I”, acknowledge that the at-will status cannot be changed. Two Division of Advice Memoranda concerning at-will policies were made public on October 31.
Both cases concerned similar language alleged to be unlawfully overbroad, and in both cases the charges were dismissed.
In Rocha Transportation, 32-CA-086799, Advice Mem. (October 31, 2012), the language at issue was, “No representative of the Company has authority to enter into any agreement contrary to the foregoing ’employment at will’ relationship.” After discussing the standard for evaluating written policies, Advice concluded that this language did not violate the Act:
We conclude that the contested handbook provision would not reasonably be interpreted to restrict an employee’s Section 7 rights to engage in concerted attempts to change his or her employment-at will status. First, the provision does not require employees to refrain from seeking to change their at-will status or to agree that their at-will status cannot be changed in any way. Instead, the provision simply highlights the Employer’s policy that its own representatives are not authorized to modify an employee’s at-will status. Moreover, the clear meaning of the provision at issue is to reinforce the Employer’s unambiguously stated purpose of its at-will policy: it explicitly states ‘[n]othing contained in this handbook creates an express or implied contract of employment.’ It is commonplace for employers to rely on policy provisions such as those at issue here as a defense against potential legal actions by employees asserting that the employee handbook creates an enforceable employment contract.
Finally there seems to be a glimmer of recognition at the agency that employers often have to worry about a multitude of state and federal employment laws, and the NLRA is often not something in mind when policies are crafted. However, what is scary about this is that the allegation is being considered at all. All it is, really, is a statement that says no one in management can offer you, employee, a contract.
Advice did address, and distinguish, the Administrative Law Judge’s Decision in American Red Cross, Arizona Region, stating:
[In that case] the ALJ found that the signing of the acknowledgement form, whereby the employee, through the use of the personal pronoun ‘I’–specifically agreed that the at-will agreement could not be changed in any way, was ‘essentially a waiver’ of the employee’s right ‘to advocate concertedly…to change his/her at-will status.’ Thus, the provision in American Red Cross more clearly involved an employee’s waiver of his Section 7 rights than the handbook provision here.
This is at least a commonsense approach. And, the agency’s release of these memoranda, like its earlier release of the social media report, is commendable because it does give some guidance on what are essentially new unfair labor practices. Notably, the clear statements of employment being “at-will” were not at all an issue in the case.
The other Advice Memorandum, issued the same day in Mimi’s Cafe, 28-CA-08436, Advice Mem. (October 31, 2012) contains the same exact analysis.
Both Advice Memoranda state that all cases alleging “employer handbook provisions that restrict the future modification of an employee’s at-will status” should be submitted to Advice for review.