On October 31st, the National Labor Relations Board (NLRB) issued two advice memos in which it concluded that the employment at-will policies in two employers' employee handbooks did not restrict employees' rights to participate in "concerted activity" under Section 7 of the National Labor Relations Act (NLRA).
In the first employee handbook at issue, Rocha Transportation, a
California-based company, advised employees in relevant part
that:
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. Only the president of the Company has the
authority to make any such agreement and then only in
writing.
Similarly, in the second handbook at issue, Mimi's
Café, a restaurant operator based in Arizona, advised
employees in relevant part that:
No representative of the Company has authority to enter into any
agreement contrary to the foregoing "employment at-will"
relationship.
In complaining to the NLRB, Rocha Transportation and Mimi's
Café employees alleged that the above language is overbroad
and would chill employees' Section 7 right to challenge or
change the employers' at-will employment policies through
collective bargaining. The NLRB disagreed. Specifically, the NLRB
distinguished the at-will language contained in the Rocha
Transportation and Mimi's Café handbooks from the
at-will language set forth in an American Red Cross employee
handbook, which an Administrative Law Judge had previously decided
violated the NLRA. The at-will language in the American Red Cross
employee handbook provided in relevant part:
I [the employee] further agree that the at-will employment
relationship cannot be amended, modified or altered in any
way.
The NLRB opined that, unlike the language in the American Red
Cross handbook, the language in the Rocha Transportation and
Mimi's Café handbooks did not require employees to waive
their Section 7 rights to "advocate concertedly" to
challenge or change their at-will status. The NLRB also advised
that while the at-will language in the Rocha Transportation and
Mimi's Café handbooks prohibited company representatives
from modifying the at-will relationship, such language cannot be
reasonably construed to restrict an employee's Section 7 right
to enter into collective bargaining with an employer to change the
employment at-will relationship.
In light of the NLRB's guidance in the Rocha
Transportation and Mimi's Café advice
memos, employers can avoid drafting employment at-will policies
that will run afoul of the NLRA by refraining from using language
in which employees effectively waive their right to engage in
concerted attempts to change their at-will employment status. These
advice memos position the at-will provisions in the Rocha
Transportation and Mimi's Café handbooks as examples of
language that does not violate the NLRA.
Originally published on the Employer's Law Blog
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