National Labor Relations Board May Review At-Will Employment Statements in Handbooks

The National Labor Relations Board’s (NLRB) Regional Office in Phoenix, Ariz., recently filed a complaint against a national hotel chain, alleging that the at-will provision in the chain’s handbook, which stated that the provision could only be changed through a written agreement between an employee and certain executives, was overbroad and violated the National Labor Relations Act (NLRA or Act).  In May 2012, the hotel chain agreed to settle this claim with the NLRB.  Notably, however, this case came shortly after an administrative law judge found that the handbook of an American Red Cross unit, which included a provision stating that the at-will relationship could not be modified, violated the Act because it could be interpreted as interfering with the right of employees to act collectively to change the policy. 

The NLRB has stated that it is not necessarily targeting policies that generally outline the at-will employment relationship, but this recent enforcement activity suggests that the agency may focus on policies stating that employees can never change their at-will status.  This scrutiny represents another potential area in which the NLRB is beginning to assert authority even over non-unionized employees, comparable to its recent pronouncements on the lawfulness of social media policies.  (For more information on the NLRB’s reports on social media policies, please click here).  In a recent speech before the Connecticut Bar Association, the NLRB’s Acting General Counsel Lafe Solomon indicated that the NLRB may be turning its attention to at-will disclaimers nationwide.  It remains to be seen, however, exactly how these types of allegations regarding at-will disclaimers would be decided by the NLRB or a court. However, in the meantime employers may want to consult with counsel and review their at-will policies in advance of potential increased scrutiny of such policies.

If you have any questions regarding any matters discussed in this briefing, please contact any of the Winston & Strawn Labor & Employment Relations Practice Group attorneys listed below or your usual Winston & Strawn contact.

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