Human Resources News & Insights

NLRB takes aim at your handbook’s ‘at-will’ clause

It’s not just social media policies that are drawing the attention of the National Labor Relations Board. The NLRB’s also focusing on the “at will” clause contained in many company handbooks.

As every HR pro knows, statements of employees’ at-will status are standard in virtually all employee handbooks. But — at least judging by the recent actions of the NLRB — the devil’s in the details.

Here’s a rundown of how the NLRB handled a couple of recent cases concerning the at-will clause, courtesy of Lawrence Baer and Olivia Zimmerman Miller of the law firm Weil Gotshal & Manges.

Earlier this year, an administrative law judge ruled that the American Red Cross Arizona Blood Services Region violated labor law because of a handbook provision that said, “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.”

Those conditions could be interpreted to mean the employee was barred from union organizing activities, the ALJ said — because joining a union would change the worker’s at-will status.

Around the same time as the Red Cross case, NLRB acting general counsel Lafe Solomon issued a complaint against Hyatt Hotels Corp., saying the section concerning employees’ at-will status was overly broad.

At issue were the following statements:

  • I understand that my employment is “at will.”
  • I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and either Hyatt’s Executive Vice President/Chief Operating Officer or Hyatt’s President.
  • The sole exception to [Hyatt’s ability to modify or delete policies] is the at-will status of my employment, which can only be changed in a writing signed by me and either Hyatt’s Executive Vice President/Chief Operating Officer or Hyatt’s President.

Again, those statements could be interpreted as a tacit ban on organizing activities on the part of employees, the NLRB said.

Both the Red Cross and Hyatt agreed to amend their handbooks and add sections explaining employees’ right to organize under federal labor law.

Breaking new ground

This seems like pretty nitpicky stuff on the part of the NLRB, and there’s likely an easy fix for most handbooks — just include a paragraph outlining and acknowledging employees’ right to organize.

The more disconcerting part of this NLRB effort is that the labor board continues to stick its nose into the day-to-day operations of all companies, unionized or not. As far as we can tell, these two cases are the first time the NLRB ever questioned this type of at-will acknowledgements in employee handbooks.





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