New NLRB Assault

Kegler Brown E-mployment Alert

Anyone who reads the news knows that the National Labor Relations Board has been especially active, issuing new rules for “quickie” union elections, a new requirement for posting employee rights to unionize, creating a webpage to broadcast employee rights to engage in “protected concerted activity,” invalidating virtually every Social Media policy, narrowing the definition of a “supervisor” for union purposes, and more.

What appears to be a bold new assault has received comparatively little attention. This assault is against the traditional at will status of employees. The at will concept is that either the employer or the employee can end the employment relationship at any time and for any reason that is not illegal.

The NLRB recently issued a complaint that asserts that the employer’s Handbook provision that requires employees to acknowledge that their employment is at will, and that their status can only be altered by a company executive, is illegal. The NLRB alleged that the Handbook statements – which are common to virtually every Employee Handbook – that (a) employees understand their employment is at will, (b) they acknowledge that oral statements cannot change the at will status, and (c) that at will status can only be altered in writing by a company executive – are overly broad and discriminatory.

The NRLB’s position appears to be that requiring an employee to sign an acknowledgement of at will status is “a waiver in which the employee agrees that his/her at will status cannot change, thereby relinquishing his/her right to advocate concertedly, whether represented by a union or not, to change his/her at will status.” In other words, the NLRB’s view seems to be that the employee’s acknowledgement of at will status constitutes an agreement not to attempt or engage in any conduct that could result in union representation and a union bargaining agreement, and a prohibition against employees joining together to seek a change in their at will status.

Although some would hope that this complaint is an aberrational gesture on the part of one NLRB Regional Office, the NLRB Acting General Counsel has indicated that blanket at will statements will face closer NLRB scrutiny as an enforcement target.