Tuesday, December 18, 2012

The NLRB’s Attack on At-Will Employment

Recent cases coming out of Region 28 of the NLRB (which is located in Arizona) indicate that the Board is beginning to undermine one of the most basic elements of the American workforce relationship – at-will employment. These Region 28 cases revolved around a relatively uncontroversial clause found in most employee handbooks and union contracts indicating that the employees of the company were at-will and that this employment arrangement could not be changed without the signature of a senior company manager. The NLRB found in both cases that the innocuous provisions were discriminatory because they might cause employees to think they could not change their at-will employment status through collective bargaining or some other qualified protected activity. Note that there was no actual claim that anyone believed that a union contract could not alter at-will employment status, or that anyone was harmed by believing that they couldn't engage in collective bargaining. The Board simply whacked these provisions on some fanciful harm that might occur in the future.

As with its opinion on off-duty employee access to the workplace, the Board seems to be making up its jurisprudence on the fly. For whatever reason, it has decided to interpret at-will employment provisions that state that the relationship can only be modified with the consent of senior management as affecting Section VII concerted activity rights. Of course, most of these at-will employment provisions were adopted in response to state court holdings that a company's failure to explicitly state that the at will employment relationship could only be modified in a particular way could lead to the inadvertent formation of employment contracts as a result of publishing employment policies in things like employee handbooks. Is the Board trying to set employers up for breach of contract claims, or is it simply trying to undermine the at-will relationships established over a century of employment jurisprudence? Who knows, but the uncertainty reflected in these Board decisions is simply going to make it more difficult for employers and strengthen the hand of unions in their interactions. Given the administration's reliance on unions for campaign financing and muscle, that may be the best explanation of all.

UPDATE:  Shortly after these decisions were issued, the NLRB General Counsel issued an updated guidance that distinguished the Arizona cases and actually moved the needle back in favor of the employer.  The GC noted that context was an important factor in assessing employer policies, and specifically noted, among other things, that the use of the personal pronoun "I" in the Arizona policy language indicated a waiver by employees of their rights to modify the at-will relationship.  These are very fine distinctions, in my opinion, that really don't give us much guidance on anything but the hairsplitting nature of the NLRB opinions.

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