by Jack 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.