This week the NLRB released two Advice Memos on “at-will” employment clauses contained in two different employee handbooks. In both cases the “at-will” language was ruled to be lawful, finding the employer did not violate the National Labor Relations Act (NLRA). The issue decided was whether the employee handbook language defining “at-will” employment was so overly broad, that employees would reasonably believe they could not engage in activity protected by the NLRA.
Yet, just this last winter in American Red Cross v. Hampton, the NLRB ruled in favor of the employee, announcing the “at-will” clause contained in the Red Cross employee handbook violated the employees NLRA protected activity. Three cases, two very different rulings, and all are important for employers who have employee handbooks.
The difference in NLRB rulings can be found in the specific language contained in the three different employee handbooks. While it may seem like hair-splitting, the seemingly slight nuances in language can make the difference between losing or prevailing on an NLRB charge, brought by one of your employees. I have outlined the language and rulings below to clarify.
In favor of the Employer:
- In the case of Mimi’s Café in Arizona, the employee handbook stated, “No representative of the Company has authority to enter into any agreement contrary to the foregoing “employment at will” relationship.” The NLRB ruled the language was not overly broad, as it did not “… require employees to agree that the employment relationship cannot be changed in any way, but merely highlights that the employer’s representatives are not authorized to change it.”
- In the case of Rocha Transportation in California, the employee handbook specifically outlined the manner in which at-will status could be changed. It stated, “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,” it continued. “Only the president of the Company has the authority to make any such agreement and then only in writing.” The NLRB ruling noted the “at-will” language explicitly stated that the relationship can be changed, and therefore employees would not reasonably assume that their NLRA rights are prohibited.
In favor of the Employee:
- In the Red Cross case noted above, employees were required to sign an acknowledgement form indicating, “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” It was determined the employer violated the Act as the language was overly-broad and discriminatory.
Based on the recent NLRB rulings, every employer with an employee handbook should review their “at-will” language and determine whether the language is more like Mimi’s Café and Rocha Transportation? Or is the language more like Red Cross? Adjustments should be made if your “at-will” language sounds more like Red Cross, to avoid any future NLRB problems.