Yesterday I wrote According to the NLRB CONFIDENTIALITY is a Nasty Word. Well, how about another NLRB update? They DON’T LIKE your at-will policy! We probably all know what “at-will” means, but just in case here is a definition. “At-will employment is a doctrine of American law that defines an employment relationship in which either party can break the relationship with no liability, provided there was no express contract for a definite term governing the employment relationship and that the employer does not belong to a collective bargaining group (i.e., has not recognized a union). Under this legal doctrine any hiring is presumed to be ‘at will’; that is, the employer is free to discharge individuals ‘for good cause, or bad cause, or no cause at all,’ and the employee is equally free to quit, strike, or otherwise cease work.” This doctrine has been used by American businesses for many, many, many years. There have been some court and legislative challenges to it that in various venues has altered or eroded it.
Now the NLRB (National Labor Relations Board) has weighed in as well. In a ruling on a case of “unjust termination” brought against the American Red Cross Arizona Blood Services Region the NLRB ruled that “at-will” provisions violated the National Labor Relations Act (NLRA). The Administrative Law Judge in the case ruled that their policy was overly-broad and discriminatory.” What were they specifically complaining about? In this particular policy, as you might find in other policies, was the statement that “…the at-will agreement between the employee and employer could not be changed without the employee granting assent and the executive VP/president or chief operating officer of the Red Cross also agreeing to him….” Language sound familiar? It does to me because I know I have seen similar statements in many an employee handbook. Such a statement has been deemed to have a chilling effect on an employee exercising their rights under the NLRA. They feel this language would make an employee think they would have no opportunity to get a union because they would not be able to get the VP to sign-off on it. Give me a break!
The upshot of this is that many attorneys, possibly yours, now recommend you alter your “at-will” statement to get rid of such restrictive language. Of course the NLRB wants you to remove “at-will” entirely. But I would not recommend doing so. One recommendation from HumanResourcesJournal is to“…add in your at-will provision section in the handbook, that it will not impact the employees’ right to negotiate singly or in a group and participate in concerted activities regarding the terms and conditions of their employment under the NLRA.” The attorneys at Smith, Gambrell & Russell recommend “…disclaimers that broadly state that at-will employment cannot be altered or may be revised in a particular way should be avoided.”
So pull out that handbook and take a look at your “at-will” statements and make the appropriate changes. After all we all know that employees hang on every word in the handbook and we certainly don’t want them thinking “Oh no, there go my chances to form a union.”
Stay tuned, you never know what else the NLRB is going to do next.
Source for definition: Wikipedia At-will employment
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