The National Labor Relations Board is taking an increasingly hard look at the language in employer handbooks, as shown by two recent cases from the NLRB’s Arizona Region. Recently, Hyatt Hotels Corporation agreed to settle an unfair labor practice charge that claimed a provision in the company’s employee handbook acknowledgment form was too broad. The provision stated that Hyatt’s at-will employment policy could not be changed except by a written agreement signed by the employee and particular executives. Similarly, earlier this year an administrative law judge decided that a disclaimer in the handbook of an American Red Cross unit stating that the at-will employment relationship “cannot be amended, modified or altered in any way,” could be interpreted to interfere with employees’ rights to engage in group activity to try to change the policy.
So, why the sudden attention by the NLRB to employee handbook policies on employment “at-will”? As HR professionals know, the language the NLRB is finding problematic in these cases is extremely common. Employers’ policies must set clear expectations for their workers. One nearly universal policy for non-union employers is that their employees are employed “at will” – meaning they can resign their employment at any time, and the employer can end their employment at any time, for any reason that does not offend the law. But given the cases described above, is an employer’s affirmation of this common, smart policy a problem under federal labor law?
These cases may be unique because in each instance the policy being challenged stated that the at-will relationship cannot be modified “in any way” or can only be modified through individual action and the agreement of the company. By failing to allow for the possibility of group action by employees (known as “protected concerted activity” using labor law vocabulary), the Board believes a company may be violating federal labor law. This interpretation was confirmed by NLRB spokesperson Nancy Cleeland, who stated that “there is no problem with telling employees they are at-will. The problem is telling them that they can never change that situation.” Based on this position by the NLRB, employers should take a hard look at the language of any at-will employment disclaimer with the help of experienced counsel.
These cases not only provide a heads-up about this new concern, but they identify an important trend: the NLRB is increasingly focusing on non-unionized workforces. Other examples include the Board’s recent pronouncements on employer social media policies and its new webpage describing protected concerted activity. Employers with a nonunionized work force should keep an eye on these developments so they can recognize the situations that could expose them to an unfair labor practice charge. The NLRB is actively looking for what they see as “infringements” on employees’ rights to engage in protected concerted activity. Wise employers will do their own reviews and take steps to ensure they are not an easy target for an aggressive Board.