NLRB Issues Guidance on At-Will Language

On October 31, the National Labor Relations Board released two advice memos providing guidance on what language would be acceptable for employers to use to describe “employment at-will” in their employee handbooks without violating the National Labor Relations Act. Earlier this year, the NLRB set off a minor firestorm by challenging an employer’s at-will policy that stated that employees could not change their at-will status under any circumstance. American Red Cross Arizona Blood Services Region (NLRB 2012). The case was settled and did not reach the full Board. At-will language has been a staple of employer handbooks for decades, and many employers were taken aback by the NLRB’s earlier ruling. Thankfully, the NLRB has released additional guidance clarifying that not all at-will policies will be challenged.

While the release accompanying the memos states that the law regarding at-will language “remains unsettled,” Associate General Counsel Barry Kearney outlined how language could be crafted to likely avoid NLRB challenge.    

The first memo analyzed Rocha Transportation’s policy, which had standard language stating, “[N]o 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.” The memo said that this language “simply prohibits the Employer’s own representatives from entering into employment agreements that provide for other than at-will employment,” and that the provision could not reasonably be interpreted to restrict rights protected by the NLRA. The second memo looked at the policy for Mimi’s Café and followed the same logic.

In the memos, Associate General Counsel Kearney takes the position that at-will clauses are lawful when they limit the authority of company representatives to change employees’ at-will relationship, but do not require employees to agree that the employment relationship cannot be changed.

We continue to suggest that the prudent course for most employers is to monitor the NLRB’s developing case law and wait for the courts of appeals and perhaps the Supreme Court to clarify employer responsibilities. Contact MSEC’s Labor Relations Department to discuss your options and determine the most prudent course for your organization.