RW Employment News: At-Will Language Said to Violate NLRA
Many employers have employee handbooks that contain broad language about employment at-will, stating specifically that the at-will relationship exists and cannot be altered absent an agreement to that effect signed by someone in management. This arrangement has now been challenged by the NLRB as a practice that potentially violates Section 7 of the National Labor Relations Act. Since Section 7 rights (which encompass the right of employees to engage in concerted activity) are applicable to even non-union employers, this line of decisions has broad-reaching impact.
In N.L.R.B. v. Am. Red Cross, 2012 WL 311334 (N.L.R.B. Feb. 1, 2012), the issue was language regarding the at-will employment status of employees found in the handbook acknowledgment that stated “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” The administrative law judge found that this clause violated Section 8(a)(1) of NLRA because it could be interpreted by employees to mean that they were limited in their right to engage in concerted activity in an effort to change their at-will status through union representation, collective bargaining or other protected concerted activity; the ALJ stated
the signing of the acknowledgment form is 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. For all practical purposes, the clause in question premises employment on an employee’s agreement not to enter into any contract, to make any efforts, or to engage in conduct that could result in union representation and in a collective-bargaining agreement, which would amend, modify, or alter the at-will relationship. Clearly such a clause would reasonably chill employees who were interested in exercising their Section 7 rights.
Later that same month, NLRB General Counsel filed a complaint against another employer alleging their at-will disclaimer, which stated that the at-will status could only be changed by a writing signed by a high level manager, violated the Act by interfering with employees’ Section 7 rights. This case settled prior to decision.
In light of these actions by the NLRB, employers should re-evaluate statements of “at-will” employment. Any change to that language, though, has to be considered and balanced with the purpose of having the statement, which is, among other things, to help guard against claims of contractual employment upon termination.
These materials have been prepared by Rudman Winchell for educational purposes only. They should not be considered legal advice. The transmission of this information to you is not intended to create a lawyer-client relationship. Readers should not act upon this information without seeking professional counsel. You should not send any confidential or private information to Rudman Winchell until a formal attorney-client relationship has been established, in writing.