February 7, 2016

February 05, 2016

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.

Jackson Lewis P.C. © 2016


About this Author

Steven S. Goodman, Labor, Employment, Attorney, Jackson Lewis, law firm

Steven S. Goodman is a Shareholder in the Melville, Long Island office of Jackson Lewis P.C. For the past thirty-two years, Mr. Goodman has been engaged exclusively in the practice of labor and employment law. From 1975 until 1979, Mr. Goodman was with the National Labor Relations Board at Region 29.

Since joining the firm, Mr. Goodman has regularly counseled clients in the development and implementation of preventive labor and employee relations programs and has represented management with respect to union organizational drives and in proceedings before the National...

Howard M. Bloom, Labor, Employment Attorney, Jackson Lewis, Law Firm

Howard M. Bloom is a Shareholder in the Boston office of Jackson Lewis P.C.  He has practiced labor and employment law representing exclusively employers for more than thirty-one years.  He graduated with honors from the University of Massachusetts, Amherst and from Suffolk University Law School, where he was the Executive Editor of The Advocate: the Suffolk University Law School Journal.  He is a member of the Massachusetts bar, as well as the U.S. District Court for the Districts of Massachusetts, Connecticut, and Rhode Island the U.S. Court of Appeals for the First Circuit and the U.S. Supreme Court.

(617) 367-0025
Roger Kaplan admininstrative law attorney at Jackson Lewis Law Firm

Roger S. Kaplana Shareholder in the Long Island office of Jackson Lewis P.C. He has represented clients and appeared before executive departments and administrative agencies, such as the United States Department of Labor (Occupational Safety and Health Administration), the Occupational Safety and Health Review Commission, the National Labor Relations Board, and the Equal Employment Opportunity Commission. He also has appeared before many federal and state courts, including the United States Supreme Court.

A leader of the Drug Testing and Substance Abuse Management Practice Group, Mr...

(631) 247-0404
Philip B. Rosen, Jackson Lewis Law Firm, Labor Law Attorney

Philip B. Rosen is a Shareholder in the New York City office of Jackson Lewis P.C. and a member of the Firm's Management Committee.  Mr. Rosen also leads the firm's Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009