Advertisement

April 23, 2014

NLRB Advice on Lawful Employment At Will Provisions Under the NLRA

On October 31, 2012, the National Labor Relations Board (NLRB) Office of General Counsel (G. C.) issued two Advice Memoranda clarifying whether employment at-will language in an employee handbook, applications or other employment policies violates the National Labor Relations Act (NLRA) by “chilling” employee rights under Section 7 of the NLRA.[1]Concern had arisen among employers as a result of findings in an earlier unfair labor practice charge (ULP) indicating that certain employment at-will provisions violated the NLRA. The Advice Memoranda reflect a commonsense approach by considering the context of most at-will employment provisions in employee handbooks.

In the first Advice Memorandum, the NLRB Office of General Counsel considered the following language in the Rocha Transportation Employee Handbook:

Employment with Rocha Transportation is employment at-will. Employment at-will may be terminated with or without cause and with or without notice at any time by the employee or the Company. Nothing in this Handbook or in any document or statement shall limit the right to terminate employment at-will. 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.

In the second Advice Memorandum, the Office of General Counsel considered the following language in the Mimi’s Café Teammate Handbook:

The relationship between you and Mimi’s Café is referred to as “employment at will.” This means that your employment can be terminated at any time for any reason, with or without notice, by you or the Company. 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.

In the ULP charges filed against Rocha Transportation and Mimi’s Café, the claimants alleged that the bolded language in the handbooks violated the NLRA “because it is overbroad and would reasonably chill employees in the exercise of their Section 7 rights.”

In rejecting these claims, the NLRB Office of General Counsel stated that any language that potentially violates the NLRA cannot be read in isolation but must be considered in context. The employment at-will policies at issue did not explicitly restrict employee Section 7 rights to change their at-will employment status through concerted activity among themselves, or through union organizing. Further, there was no indication that the policies were implemented in response to union organizing or that the policies had been applied to restrict protected concerted activity by employees. Thus, the handbook provisions would only be unlawful if employees would reasonably construe the policies “in context” to restrict their Section 7 activities.

The G. C. concluded that the handbook provisions did not require employees to refrain from seeking to change their at-will status or to agree that their at-will status could not be changed in any way. Instead, the handbook provisions simply made clear that the employer’s own representatives were prohibited from entering into employment agreements that would provide for other than at-will employment and were not authorized to modify an employee’s at will status. The Rocha Transportation provision clearly indicated the possibility of a modification of the at-will relationship through a collective bargaining agreement ratified by the company’s president. Further, the clear meaning of the Mimi’s Café provision was to reinforce the purpose of the at-will policy, i.e., that the handbook did not create an express or implied contract of employment. The G. C. noted “[i]t is commonplace for employers to rely on [such] policy provisions . . . as a defense against potential legal action by employees asserting that the employee handbook creates an enforceable employment contract.”

The G. C. distinguished the prior American Red Cross Arizona Blood Services Region case which had raised concerns among employers about the liability of at-will disclaimers. In that case, the employer was held to have violated the NLRA by maintaining the following language in an acknowledgement form that employees were required to sign: “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” The G. C. stated that this language required the employee – through the use of the personal pronoun “I” – to agree that at-will status could not be changed and was “essentially a waiver” of the employee’s right “to advocate concertedly . . . to change his/her at-will status.”

The NLRB guidance on at-will provisions in employee handbooks, employment applications, employee acknowledgment forms and other employment documents has clarified that at-will policies phrased in terms of what the employer can and cannot do, rather than what employees can and cannot do, generally will not violate employee Section 7 rights under the NLRA. Employers should carefully review their employment at-will policies for compliance with the NLRA.


[1]NLRB Office of the General Counsel, Advice Memorandum in Rocha Transportation, Case No. 32-CA-086799 (Oct. 31, 2012); NLRB Office of the General Counsel, Advice Memorandum in SWH Corporation d/b/a/ Mimi’s Cafe, Case No. 28-CA-084365 (Oct. 31, 2012).

© 2014 Bracewell & Giuliani LLP

About the Author

Partner

Practicing law since 1978, James (Jim) Kizziar represents and counsels the managers and owners of diverse companies and business entities in all aspects of labor and employment law, before federal and state agencies and the courts. His practice includes litigation and preventive counseling of management on issues such as discrimination, harassment, union organizing and wage-hour issues.

Mr. Kizziar conducts employment law training for executives, managers and supervisors. He also is a lecturer and prolific writer on labor law issues, and served...

210-299-3526

Boost: AJAX core statistics

Legal Disclaimer

You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's  Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only. Any legal analysis, legislative updates or other content and links should not be construed as legal or professional advice or a substitute for such advice. No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys or other professionals or organizations who include content on the National Law Review website. If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor.  

Some states have laws and ethical rules regarding solicitation and advertisement practices by attorneys and/or other professionals. The National Law Review is not a law firm nor is www.NatLawReview.com  intended to be  a referral service for attorneys and/or other professionals. The NLR does not wish, nor does it intend, to solicit the business of anyone or to refer anyone to an attorney or other professional.  NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us. 

Under certain state laws the following statements may be required on this website and we have included them in order to be in full compliance with these rules. The choice of a lawyer or other professional is an important decision and should not be based solely upon advertisements. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. Statement in compliance with Texas Rules of Professional Conduct. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials.

The National Law Review - National Law Forum LLC 4700 Gilbert Ave. Suite 47 #230 Western Springs, IL 60558  Telephone  (708) 357-3317 If you would ike to contact us via email please click here.