In a recent case, an ALJ of the NLRB held that an employer's at will statement in its Employee Handbook violated the NLRA. I told you that you needed to breathe deeply before reading. Take another deep breath before continuing.
Of course, the Board has not yet ruled on the ALJ's decision. While I am not a betting man, I think the Board is as likely to reverse the ALJ as is former Chair Wilma Liebman is to apply for a job with the National Right to Work Legal Defense Foundation.
Does this mean employers should eliminate the at-will language from their handbooks? Of course not!
But, based on the ALJ's "analysis," there are at least two steps we can take to minimize the risk under the NLRA as rewritten by the NLRB.
First, do not make a general statement that the at-will principle cannot be modified "in any way." Make clear it cannot be modified by any supervisor, manager or other representative of the company unless in writing. That way we are not impliedly stating, or so it may be interpreted, that a union could not negotiate a change.
Second, we should require only that employees acknowledge receipt of the handbook as opposed to requiring their agreement, too. We don't need their agreement and requiring their agreement irritated the ALJ, who wrote: "For all practical purposes, the clause in question premises employment on an employee's agreement" not to engage in union activity that could result in a collective bargaining agreement.
Independent of the NLRA, requiring agreement may undo the disclaimer that the handbook is not a contract. A results-oriented state court judge might say that, if you are going to require employees to agree to it, you as the employer better comply with it, too.
Of course, independent of both NLRA and state law contract claims, failure to comply with a handbook may be evidence of bias. So make sure your policies provide you with the agility you need to operate in this increasingly fast moving world.
If you are feeling strong, emotionally and physically, you can read the entire ALJ opinion: American Red Cross Arizona Blood Services Region, Case No. 28-CA-23443 (February 1, 2012)
THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR AS ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.
Posted by Jonathan Segal
@ March 11, 2012 11:10 AM EDT