By: Steven M. Swirsky and Paul H. Burmeister

In yet another foray into non-union workplace issues, on October 31, 2012, the Office of the General Counsel of the National Labor Relations Board (“NLRB”) issued a pair of Advice Memoranda regarding similar issues with respect to ‘employment at-will’ policies contained in employee handbooks. (Rocha Transportation, 32-CA-086799 PDF and SWH Corporation d/b/a Mimi’s Café, 28-CA-084365 PDF). At issue in each case was at-will disclaimer language in an employee handbook which prohibits the employer’s representatives from entering into employment contracts that could alter an employee’s at-will status.

The employers in these cases, a transportation company and a restaurant chain, each had an employee handbook which contained language regarding their at-will employment policies:

1)      The Rocha Transportation Driver Handbook provided:

“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.”

2)      Mimi’s Café Teammate Handbook stated:

“No representative of the Company has authority to enter into an agreement contrary to the foregoing ‘employment at will’ relationship.”

Each handbook required employees to sign a statement to acknowledge receipt of the handbook.

In finding that the two statements did not violate employees’ rights under the National Labor Relations Act, the Office of the General Counsel concluded that these provisions did not violate Section 7 of the Act, since they did not require, “… employees to refrain from seeking to change their at-will status or to agree that their at-will status cannot be changed in any way.” In each case, the statement merely prevented unauthorized representatives of the employer from entering into an employment agreement with their employees.

The General Counsel distinguished the Rocha Transportation and Mimi’s Café at-will clauses from a recent decision by an Administrative Law Judge in American Red Cross, noting that the Judge’s decision had not been considered by the Board.  In American Red Cross, ALJ Gregory Meyerson found that an at-will provision stating, “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way” violated Section 7 because it was essentially a waiver from the employees to not engage in concerted activity to change their at-will status and that any effort to change that status through union representation would be futile.

On the contrary, the General Counsel opined that the at-will language at issue in Rocha Transportation and Mimi’s Café would not inhibit employees from seeking to change to their at-will status with their employer through union representation. He further noted in Rocha Transportation’s at-will provision that the company president could alter the at-will relationship, which recognized the possibility of a collective bargaining agreement.

Accordingly, the General Counsel, through these Memoranda, has offered a roadmap for creating or revising at-will agreements in employee handbooks that should be found not to interfere with employees’ Section 7 rights.  If the at-will provision does not preclude the possibility of altering an employee’s at-will status with their employer, then the NLRB will likely find the provision lawful. However, despite the Memoranda, as none of the three decisions discussed herein have been settled with the NLRB, employers should continue to exercise caution in crafting at-will provisions.

Management Missives

  • Management should avoid using any language in its at-will policies which precludes the possibility that .the employee can modify the at-will agreement.
  • Management should consider inserting a reference to a management team member who does have the authority to alter an at-will relationship.
  • Management should review its at-will policies and revise any portions that may not reflect the language which the General Counsel has found lawful, with the notion that the issue has not yet been settled by the NLRB in a Board decision.