Employer’s At-Will Policy Passes NLRB (National Labor Relations Board) General Counsel’s Scrutiny
As the National Labor Relations Board (“NLRB”) continues to scrutinize employee handbook provisions, finding that many of them interfere with employees’ right to engage in union or protected concerted activity, a determination upholding an at-will employment clause that had been challenged by a union is worth noting.
The NLRB’s Division of Advice (“Advice”), an arm of the Agency’s General Counsel’s Office charged with helping to determine whether novel unfair labor practice charges filed in NLRB Regional offices are meritorious, decided an employer’s employment-at-will policy was lawful as it did not inhibit employees from exercising their statutory rights to organize under Section 7 of the National Labor Relations Act. Lionbridge Technologies, 19-CA-115285 (issued Mar. 31, 2014, released Apr. 18, 2014). Jackson Lewis represented the employer in the case.
The employer’s policy stated:
Employment at the Employer is on an at-will basis unless otherwise stated in a written individual employment agreement signed by the Senior Vice President of Human Resources. This means that employment may be terminated by the employee or the Employer at any time, for any reason or for no reason, and with or without prior notice.
No one has the authority to make any express or implied representations in connection with, or in any way limit, an employee’s right to resign or the Employer’s right to terminate an employee at any time, for any reason or for no reason, with or without prior notice. Nothing in this handbook creates an employment agreement, express or implied, or any other agreement between any employee and the Employer.
No statement, act, series of events or pattern of conduct can change this at-will relationship.
Advice concluded that while the policy did not explicitly restrict Section 7 rights, was not promulgated in response to union activity, and was not applied unlawfully, there remained the question whether employees could reasonably construe the policy as prohibiting them from organizing a union. Advice found the policy could not reasonably be construed to prohibit Section 7 rights and therefore was lawful.
First, Advice concluded the clause stating that only the Senior Vice President of Human Resources could change an employee’s at-will status would not lead employees to believe it would be futile to attempt to organize to change their at-will status. The language, Advice concluded, was not directed at inhibiting employee rights but rather toward protecting the employer from claims that the handbook was an enforceable employment contract.
Second, Advice also found lawful (although troubling) the last sentence of the policy. That provision read, “No statement, act, series of events or patterns of conduct can change this at-will relationship.” This reasonably could be construed by employees as indicating that any actions by them to change their at-will status would be futile, Advice concluded. However, it also concluded the language was not a work rule directed at employee conduct, did not threaten discipline for attempting to change at-will status and, most important, did not require employees to agree that their at-will status could never be changed. Advice distinguished this rule from one it reviewed in a 2012 case where employees were required to sign a statement that they agreed their at-will status could not be “amended, modified or altered in any way.” The requirement for such agreement rendered that clause unlawful. The absence of any similar requirement here was critical to Advice directing dismissal of the ULP charge.
NLRB examination of employer rules and policies is increasing. Even a few, seemingly routine words may mean the difference between lawful expression and an NLRA violation. New decisions in this area are being issued by the NLRB and Advice almost weekly. For that reason, it is important that employer handbooks and policies be reviewed carefully and regularly with the National Labor Relations Act firmly in mind.