I have written several times about the impact or potential impact that decisions of the NLRB (National Labor Relations Board) may have on employers, especially non-union employers. Well here is another one… your “at-will” policies are now in danger!
For those of you who are not quite sure what this means let me explain “at-will”. It is a well-established common law doctrine that allows an employer or employee to terminate an employment relationship at any time or for any reason that is not barred by a Federal or State statute or some contractual relationship. A good example, though poor HR, was the law firm that fired employees for wearing orange shirts. Orange shirts do not have “protected status.” Terminations are best done for work performance reasons, but under “at-will” there is some freedom in the process. Taken from the employee standpoint, an employee can walk in and quit on the spot, no notice required nor an explanation. That is the concept of employment-at-will.
Every employment attorney in the United States encourages some statement of “at-will” be in several places in every handbook and some even encourage it on the application. However, that management “right” given to companies by a long history of case law is now in danger from a very activist NLRB. According to attorney blogger Jason Rossiter, who writes in The Personnel Files, a recent decision by the NLRB appears to have declared “at-will” as violating Section 8 (a) 1 of the National Labor Relations Act (NLRA). Section 8 (a) 1 says:
It shall be an unfair labor practice for an employer–
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [section 157 of this title];
Rossiter found this tidbit in a case that dealt with one of the Facebook firing cases, the Hyatt Hotel case. The NLRB statement specifically said that the “at-will” language restrained employee exercise of their NLRA rights. One of the remedies the NLRB required was removal of all offending policies, in this case the social media policy and potentially the “at-will” policy too. His reading of this is that an upholding of this ruling may make having handbooks with such disclaimers null and void.
The potential good news is that an administrative law judge has not yet ruled on this case, though the decision may come before the end of May, certainly by June. The bad news is that if the NLRB ruling is upheld “at-will” will be making an exit out the window.
If you would like to read the NLRB’s case against Hyatt click here.
If you would like to read Rossiter’s blog post click The NLRB’s War on “At Will” Disclaimers.