“At Will” Employment Changes – an important update

While many have been enjoying a well-deserved summer break, the National Labor Relations Board (NLRB) has been busy.

Board findings

In American Red Cross and Lois Hampton, Case 28-CA-23443, (2012) a NLRB Administrative Law Judge (“ALJ”) held that a statement in an employee handbook acknowledgment form concerning the permanence of the employee’s at-will employment status was in violation of Section 8(a)(1) of the NLRA as restrictive of an employee’s rights arising under Section 7 of the NLRA.

(Section 7 provides that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities”.)

In American Red Cross, the employer’s Agreement and Acknowledgment of Receipt of Employee Handbook form contained the following language: “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.”  The ALJ noted that where an employer’s rule is likely to have a chilling effect on Section 7 rights, the Board may conclude that its maintenance is an unfair labor practice even in the absence of evidence of enforcement.

Impact on Employers

While it remains to be seen whether this case will be reviewed further by the NLRB, all employers, union or not, should be mindful of and review the employment at-will language contained in their employee handbooks and acknowledgment forms.  One fix for employers is to ensure that your standard “at-will” statements do not include a permanent ban on future amendments – something akin to language reflecting that the at-will employment status can be changed only with the approval of an officer of the employer and/or simply omitting any reference regarding the permanence of the at-will status.

This is an important bit of “At Will” fine tuning by the NLRB.  Review and update this part of your policy manual as soon as possible!

If you have additional questions relating to human resources or would like to have your policy manual reviewed, please contact David Lunzmann at Lewis, Hooper & Dick, LLC at (620) 275-9267.

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