Say it. Don’t Ask Them to Agree!

Published on: Author: Mary Beth Gettins Leave a comment

Recently the National Labor Relations Board (NLRB) published 2 memos regarding the verbiage used regarding “at-will” employment in employee handbooks. “At-will” employment is the common lingo for ‘I can fire you at any time for any reason – there is no promise of continued employment.’ “At-will” employment provisions are common, if not standard, in all employee handbooks.

But, what does the National Relations Board (NLRB) have to do with me? Isn’t the NLRB all about unions and stuff? Yes, the NLRB is concerned about unions, but other things, too. The NLRB is charged with enforcing the National Labor Relations Act (NLRA). In short the NLRB enforces the NLRA. Now there are some acronyms for all you acronym junkies.

On its website, the NLRB says it is concerned about protecting an employee’s “right to join together to improve their wages and working conditions, with or without a union.” There is a short list of exceptions (for example the Federal Reserve Bank, employers subject to the Railway Labor Act, and Religious Schools), but chances are if you are an employer, you are covered by the NLRA.

Now that we know that the NLRB has concerns beyond unions, and you are probably covered under the NLRA, what is all the fuss about? Well let’s look at 2 ‘at-will’ provisions:

These provisions were taken from actual NLRB cases. The one on the left is taken from Rocha Transportation Case 32-CA-086799. The one on the right is taken from American Red Cross Arizona Blood Services Region Case 28-CA-23443. The NLRB said that Red Cross’ provision “would reasonably tend to chill employees in the exercise of their Section 7 rights.”

Section 7 of the NLRA rights says: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized” under the NLRA.

So let’s boil it down. You cannot ask employees to sign, agree, or acknowledge that they are at-will employees and their status as an at-will employee is un-modifiable. You can tell them that they are at-will employees and nothing in the handbook changes their at-will status.  Playing off of the former military policy; the message from the NLRB memo is: Don’t ask, Do Tell.

Lesson from the Court: Using less words does not make it permissible and using more words does not make it lawful. 

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