What Could Be Wrong With Confirming "Employment At-Will" Status?
Most employers are advised by counsel to include language in employee manuals and agreements confirming that employment status is “employment at-will”. Some go on to provide that this status cannot be changed except under very specific conditions. Could these provisions violate the National Labor Relations Act (“NLRA”)?
National Labor Relations Board Began Finding Policies Were Unlawful Restraint Of Concerted Activity
Mid-year 2012, the NLRB issued an opinion which found this "employment at-will" language in Hyatt International’s policies unlawful because it could “dampen concerted activities if employees believe that union representation could not alter their at-will status”:
“I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and either Hyatt’s Executive VP/Chief Operation Officer or Hyatt’s President”.
This is fairly standard language for many "employment at-will" status confirmation policies and appears to leave open the possibility of modification of status. Why this is unlawful still is puzzling.
In another opinion, the NLRB said the language used by the American Red Cross also was unlawful. It basically created a waiver of the right to engage in concerted activities by employees to change the status of their employment from "employment at-will". This language read:
“The at-will employment relationship cannot be changed without the signature of both the employee and either the executive VP/president or chief operating officer of the Red Cross,” and “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way”.
Probably, the second sentence caused the policy to be unlawful. This makes more sense.
These NLRB opinions created mass concern by employers over whether their "employment at-will" policy statements could form the basis for an NLRB charge. The NLRB's position seemed over-the-top.
Later NLRB Opinions Seem Inconsistent With Earlier Findings
The NLRB’s Division of Advice later came out with opinions approving the policies of two other employers. One that was approved, for Rocha Transportation, read:
“No manager, supervisor, or employee of Rocha Transportation 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.”
This was found to be acceptable because it was clear that the "employment at-will" status could be changed. How is this really different from Hyatt’s policy, which was found to be unlawful? The NLRB did not explain.
The second approved policy, for Mimi’s Café, read:
“No representative of the Company has authority to enter into any agreement contrary to the foregoing ‘employment at will’ relationship”.
This wording was deemed lawful because employees did not have to agree that the employment relationship could not be changed at all, only that the employer’s representatives did not have authority to change it. Doesn’t this seem like splitting hairs?
So What Is And Is Not An Acceptable "Employment At-Will" Policy?
This is an open question. It is far from clear and predictable what the NLRB will find acceptable and what it will not. It appears the NLRB will examine "employment at-will" provisions on a case-by-case basis and will not declare all at-will statements improper. The head of the NLRB’s Division of Advice is telling regional offices to submit cases involving such "employment at-will" provisions for further analysis by NLRB’s Division of Advice.
Should Employers Review Their "Employment At-Will" Policy?
Employers should review their policies on "employment at-will" to be sure they do not foreclose the possibility that the at-will status could be modified under conditions the NLRB finds acceptable. Due to the complexities of NLRB's "employment at-will" opinions, legal counsel should be sought to ensure your policy does not an unfair labor practice charge.
If you have questions about the NLRB's complex, ever-changing regulations and opinions, contact Amarillo board-certified labor and employment lawyer, Adair Buckner, for the latest status of the NLRB's positions.
To learn more about Adair Buckner and her practice visit her profile page and her Labor & Employment Law page.
Adair M. Buckner, Attorney at Law, is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization. Her other areas of practice include business law, business disputes, commercial litigation, estate planning, and probate. You can reach Adair at (806)-220-0150 or firstname.lastname@example.org. This material is not intended to be legal advice. The contents are intended for general information purposes only.