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NLRB Offers Advice on Lawful 'At-Will' Employment Policies

Posted on Thu, Nov 29, 2012 @ 02:46 PM

by Jack B. HarrisonJack B. Harrison

On October 31, 2012, the National Labor Relations Board’s General Counsel’s Office Division of Advice issued two opinions (“Advice Opinions”) regarding “at-will” clauses in two employee handbooks.  In these opinions, the General Counsel’s Office concluded that the clauses at issue were lawful.

The two clauses at issue were as follows:

AT-WILL EMPLOYMENT: The relationship between you and the Company is referred to as “employment at will.”  This means that your employment can be terminated at any time for any reason, with or without cause, 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.

Employment with the Company 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 the Company 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.

As to the first clause, the opinion stated that this language was not unlawfully broad, in that the clause did not require employees to refrain from seeking to change their at-will status or to agree that the employment relationship cannot be changed in any way.  As to the second clause, the opinion concluded that the language was not unlawfully broad, in that the clause explicitly stated that the at-will relationship could be changed, allowing employees to reasonably assume that their rights under the National Labor Relations Act were not limited or prohibited in any fashion.

In the opinion, the General Counsel’s Office distinguished these clauses from a clause an Administrative Law Judge had previously held was unlawfully broad.  In the earlier ALJ decision, the clause at issue read, “I agree that the at-will employment relationship cannot be amended, modified, or altered in any way.”  In that case, the Board found this acknowledgment was “essentially a waiver in which an employee agrees that his/her at will status cannot change, thereby relinquishing his/her right to advocate concertedly, whether represented by a union or not, to change his/her at will status.”  In contrast, the General Counsel’s opinion stated that the two clauses above were not unlawfully broad, in that the language in the clauses allowed for the possibility of a change in employees’ at-will status where agreements to that effect might be signed by a company representative, even if it be a highly placed one.  As a result, the opinion stated that employees’ efforts to unionize would not necessarily be limited or inhibited by the at-will language of the policies.

This opinion comes against the backdrop of the Board’s continuing efforts in recent years to focus its enforcement efforts on employer policies that, in the Board’s opinion, restrict employee rights unlawfully under the National Labor Relations Act.  In the course of these efforts, “at-will” employment statements, in particular, have drawn the Board’s attention.  In fact, the Board’s Acting General Counsel has, at times, suggested that even a conventional at-will statement might violate the NLRA.  With this opinion, the Board has, at least, offered some guidance as to the types of “at-will” statements and acknowledgements it might find lawful under the NLRA.

Prudent employers should exercise caution in the “at-will” statements and acknowledgements that they use, so as to avoid language that the Board has indicated it could find problematic.  Cors & Bassett attorneys are certainly available to assist employers in reviewing the various policies that might be contained within their Employee Handbook and in other documents.

Tags: At-Will Employment, NLRB, National Labor Relations Board

NLRB Guidance on Social Media Policies—Look to Wal-Mart

Posted on Wed, Nov 14, 2012 @ 09:49 AM

Robert J. Hollingsworthby Robert J. Hollingsworth

The phenomenal rise in the use of social media is reflected in the recent focus of the National Labor Relations Board (“NLRB”) on cases involving social media policies.  As people increasingly use social media to discuss all aspects of their lives, they frequently post comments about work-related matters.  These comments sometimes involve complaints about the employer, supervisors, and co-workers, often in colorful and profane language.  Given the potential that a worldwide audience may view these postings, employers have become alarmed at the potential for the dissemination of confidential information or trade secrets; injury to the employer’s business reputation; threats, harassment or ridicule of co-workers; or invasions of privacy, just to name a few concerns.  In response, many employers have adopted social media policies and in some cases have disciplined employees for violations of these rules.

From its inception in 1935, the NLRB has protected the right of workers to engage in “protected concerted activity.”  This refers to the right of employees in the private sector to join together to improve their wages and working conditions, with or without a union, or to refrain from such activities.  These rights may be exercised through social media.

The General Counsel of the NLRB has issued three reports on social media policies: the first on August 18, 2011, the second on January 24, 2012, and the third on May 30, 2012.  For employers looking for guidance on how to write a social media policy that will pass scrutiny by the NLRB, the General Counsel’s third report is the most helpful.

While the General Counsel’s third report is not a model of consistency or clarity, it contains some helpful recommendations.  First, when drafting a social media policy, employers should avoid language that is too general and might restrict “protected concerted activity”: for example, a policy that prohibits employees from disclosing confidential information.  Since “confidential” information could include wages, the NLRB would consider such a policy as too broad.  The General Counsel’s advice: define and give examples of “confidential” information so that employees will understand that it does not include “wages” or other matters relating to the terms or conditions of employment

The second most helpful piece of advice from the General Counsel is that he found one employer’s social media policy to fully comply with the National Labor Relations Act.  The employer is Wal-Mart.  The General Counsel was so favorably impressed with Wal-Mart’s revised policy that he attached the entire policy to his report.

For any employer drafting or revising its own policy, the Wal-Mart policy provides a helpful starting point.  Following this policy will not absolutely guarantee that the NLRB won’t challenge some aspect of the policy in the future, but an employer adopting some version of this policy will have the comfort of knowing that its policy presently enjoys the endorsement of the General Counsel.  Click here for a copy of the Wal-Mart policy.

Tags: Social Media Policy, Protected Concerted Activity, NLRB, National Labor Relations Board