NLRB puts At-Will Employment on Notice | DCR Workforce Blog

NLRB puts At-Will Employment on Notice

If you are an employer who believes in your unalienable right to terminate your employees at-will (i.e. for any reason or no reason at all) the time has come to revise that stand. It is more or less a standard practice to have at-will clauses saying either party can terminate the employment relationship at will for any lawful reason – in employment agreements.  The employers typically require written acknowledgement by the employee, especially when they are non-union employees.

In several recent challenges, the National Labor Relations Board (NLRB)   has determined that at-will employment clauses can violate Section 7 of the NLRA.  Section 7 protects the rights of employees to “self-organize, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The NLRB’s rulings put staffing companies on notice to ensure that at-will employment clauses do not limit the employee’s rights under Section 7 of the NLRA. To ensure this, employers may be guided by the following broad guidelines:

  • The at-will clause may not carry overly broad terms and claim to be immutable, allowing no changes, alterations or amendments. This is construed to undermine the rights of employees to engage in collective bargaining. It is common for union contracts to negotiate terms in such a way to ensure that an employee is terminated ‘for cause’ only and not at-will. The Blood Services division of the American Red Cross of Arizona, was directed to revise their restricted employment agreements to avoid any confusion.

Another employer, Hyatt, was also deemed to have violated the NLRA when it advised its employees that their at-will employment status could only be modified with the counter-signature of Hyatt’s executive vice president or president.  This language prevents employees from engaging in concerted activity to alter their at-will status. Hyatt settled the matter and removed the clause from the employee agreement as well as the employee acknowledgement forms, even before a ruling was made. Hyatt has also agreed to post notices of the changes in to the employee handbook and also provide employees with revised inserts for their employee handbooks. Mutual at-will clauses, disclaimers and acknowledgements are a common feature in employee agreements and handbooks.  These clauses are intended to ensure that no employee can argue for an indefinite extension to their employment agreement or claim that the job offer was made for a lifetime However, the above examples demonstrate how determined the NLRB it is to protect the collective bargaining rights provided in Section 7 of the NLRA. This makes it necessary for employers to review and possibly revise their employee handbooks, removing any clauses which may be deemed to violate the rights of employees to collective bargaining activities.

The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.