Wednesday, October 31, 2012

NLRB Releases More Guidance on At-Will Clauses in Employee Handbooks

A recent decision by the NLRB finding that an employer's provision in an employee handbook regarding at-will employment violated the National Labor Relations Act (NLRA) made major buzz and has led to a call for guidance.  Today, the NLRB's general counsel, Lafe Solomon, released an analysis of at-will employment clauses in two employee handbooks, finding that both are lawful under the NLRA.  

From the NLRB press release on the analysis:  

As both memos explain, an employer violates the Act by maintaining work rules or policies that explicitly prohibit NLRA-protected union or concerted activity, such as joining a union or discussing terms and conditions of employment with coworkers. Even if not explicit, a rule can be unlawful if employees would reasonably construe the language to prohibit such activity.
The clause in a handbook maintained by Rocha Transportation in Modesto, California advised drivers that their employment is at-will and may be terminated at any time. “No manager, supervisor, or employee of Rocha Transportation 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,” it continued. “Only the president of the Company has the authority to make any such agreement and then only in writing.” The Division of Advice Memo notes that this clause explicitly states that the relationship can be changed, and so employees would not reasonably assume that their NLRA rights are prohibited.
At Mimi’s CafĂ© in Casa Grande, Arizona, the Teammate Handbook description of at-will employment includes the sentence: “No representative of the Company has authority to enter into any agreement contrary to the foregoing “employment at will” relationship.” The Advice Memo found this was not unlawfully broad because the clause does not require employees to agree that the employment relationship cannot be changed in any way, but merely highlights that the employer’s representatives are not authorized to change it.
Because this issue remains highly unclear and unguided, the NLRB is still asking all Regional Offices to submit cases involving employer handbook at-will provisions to the Division of Advice for further analysis and coordination. 

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