NLRB General Counsel Advises on Lawful ĎAt-Willí Employment Policies, Acknowledgments
The National Labor Relations Board, its General Counsel, and Regional Offices in recent years have focused enforcement efforts on employer policies that, in their opinion, restrict employee rights unlawfully under the National Labor Relations Act. “At-will” employment statements, in particular, have drawn their attention — to the consternation of many employers who include such statements in their handbooks and policies. The agency’s Acting General Counsel has even suggested that a conventional at-will statement might violate the NLRA, but the Board and its enforcement arm have offered little in the way of specific guidance.
That may be changing. On October 31, the General Counsel’s Office Division of Advice, analyzing “at-will” clauses in two employee handbooks, issued two “memoranda” opinions (“Advice Opinions”) concluding that the clauses were lawful.
The first clause the Division examined stated:
AT-WILL EMPLOYMENT: The relationship between you and the Company is referred to as “employment at will.” This means that your employment can be terminated at any time for any reason, with or without cause, with or without notice, by you or the Company. 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.
The Division said this language was not unlawfully broad because the clause did not require employees to refrain from seeking to change their at-will status or to agree that the employment relationship cannot be changed in any way. Instead, it merely emphasized that the employer’s mid-level and subordinate representatives had no authority to alter employees’ at-will status.
The second clause the Division considered said:
Employment with the Company is employment at-will. Employment at-will may be terminated with or without cause and with or without notice at any time by the employee or the Company. Nothing in this Handbook or in any document or statement shall limit the right to terminate employment at-will. No manager, supervisor, or employee of the Company 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.
The Division concluded that the language was not unlawfully broad because the clause explicitly stated that the at-will relationship could be changed, and thus, employees would not reasonably assume that their NLRA rights were prohibited. It additionally noted that the provision simply prohibited the employer’s own representatives from entering into employment agreements that provided for other than at-will employment.
The Division of Advice distinguished each case from a clause an Administrative Law Judge held was unlawfully broad earlier this year. There, the clause read, “I agree that the at-will employment relationship cannot be amended, modified, or altered in any way.” The Board found the acknowledgment was “essentially a waiver in which an employee agrees that his/her at will status cannot change, thereby relinquishing his/her right to advocate concertedly, whether represented by a union or not, to change his/her at will status.” The clauses before the Division of Advice, in contrast, were not so broad, since the language in issue allowed for the possibility of a change in employees’ at-will status where agreements to that effect might be signed by a company representative, even if it be a highly placed one. Thus, employees’ efforts to unionize would not necessarily be thwarted or inhibited by the at-will language of the policies.
It is also interesting to note that earlier this year, the NLRB’s Phoenix regional office issued a complaint against an employer based on the at-will acknowledgment below. That matter settled prior to a hearing, thus the General Counsel’s exact argument was never outlined. Based on the Division’s Advice Opinions, however, it appears that the General Counsel takes the position that any language in which an employee affirms that at-will status may not be modified poses the most significant concern.
[Y]ou understand that your employment is “at will,” and that you acknowledge that no oral or written statements or representations regarding your employment can alter your at-will employment status, except for a written statement signed by you and either our Executive Vice-President/Chief Operating Officer or [the Company]’s President.
The issue does seem semantical but caution should be taken to avoid language that the Board could find problematic. Jackson Lewis attorneys are available to assist with all levels of policy reviews to ensure policies comply with the NLRB’s evolving position.