The NLRB has confused me with its apparent
reasonableness. Last week, the NLRB published an advice memorandum from its
Office of General Counsel, in which it opined that the at-will disclaimer in an
employer's handbook did not violate employees' Section 7 rights to engage in
protected, concerted activity.
Recall that last year, the NLRB launched a preliminary offensive against handbook
In its most recent proclamation [pdf], the Board considered the
following at-will language:
Employment with the Company is at-will which means the
employment relationship may be terminated with or without cause and with or
without notice at any time by you or the Company. In addition, the Company may
alter an employee's position, duties, title or compensation at any time, with
or without notice and with or without cause. Nothing in this Handbook or in any
document or statement and nothing implied from any course of conduct shall
limit the Company's or employee's right to terminate employment at-will. Only
the Company President is authorized to modify the Company's at-will employment
policy or enter into any agreement contrary to this policy. Any such
modification must be in writing and signed by the employee and the President.
The NLRB's Office of GC concluded that the italicized
language is lawful because it cannot reasonably be interpreted to restrict
employees' Section 7 rights to engage in concerted attempts to change the
employment at-will status. The Office of GC contrasted this language with other
language that an NLRB Administrative Law Judge has previously found unlawful:
"I further agree that the at-will employment relationship cannot be amended,
modified or altered in any way." The difference, according to this memo, is the
ability to modify the at-will nature of the employment in the future.
I'll leave you with one final thought. In a footnote, the
Office of GC made the following comment: "The Board repeatedly has said that
potentially violative phrases must be read in context and that it will not find
a violation simply because a rule could conceivably be read to restrict Section
7 activity." If that statement is true, how can the NLRB continue to justify
its over-the-top policy statements on social media
policies? If the NLRB can carry its reasonable position on at-will
disclaimers over to social media policies, I think we
might just become friends.
Visit the Ohio Employer's Law Blog for more
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