NLRB Approves At-Will Employment Policies: 5 Takeaways for Employers

What’s wrong with the following employment at-will policies?

1. “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.”

2. “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.”

According the National Labor Relations Board, absolutely nothing.

The NLRB’s Division of Advice recently issued guidance regarding the employment at-will policies of Mimi’s Café and Rocha Transportation, writes Doug Haas of the law firm Franczek Radelet, and found both to be lawful:

“The Division of Advice concluded that neither policy would ‘reasonably be interpreted to restrict an employee’s Section 7 right to engage in concerted attempts to change his or her employment at-will status.’”

For employers and HR managers, five takeaways from the NLRB guidance:

1. Follow the guidance or face unfair labor charges:

“Now that [the Division of] Advice has provided clarification, employers have much more certainty in drafting at-will provisions, as well as a strong legal defense against any unfair labor charges related to the at-will employment disclaimers brought by unions or employees.” (Saul Ewing)

2. Don’t tell employees they can’t change their status:

“The Division of Advice explained, however, that the provision simply highlighted the employer’s policy that its own representatives may not modify the at-will relationship and reinforced that the employer’s handbook did not create an express or implied contract of employment. The provision did not require employees to refrain from seeking a change in at-will status or to agree that their at-will status could not be changed.” (Morgan Lewis)

3. Avoid ambiguity and vague language:

“Employers seeking to avoid unfair labor practice charges concerning their at-will employment statements should avoid making any broad, ambiguous at-will statement that is susceptible to an interpretation that the statement restricts employees’ rights to change their employment terms.” (Constangy, Brooks & Smith)

4. At-will employment is not being challenged:

“[T]he 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.” (Proskauer)

5. This isn’t likely to be the Board’s final word:

“AGC Kearney admitted that the law on the issue was ‘unsettled,’ so he requested all of the Board’s regions submit all cases involving handbook provisions that restrict modifications of employees’ at-will status to the Board’s Division of Advice… By asking all the regions to submit their cases regarding at-will provisions to the Board’s Division of Advice, the Board may be laying the groundwork to definitively rule on the issue.” (FordHarrison)

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