The National Labor Relations Board (NLRB) recently began focusing on at-will employment policies as being "overbroad" under federal law, which is grounds for an unfair labor practice charge. On October 31, 2012, the NLRB released two advice memorandums discussing the legality of two employers' at-will employment policies.
Both employers' at-will employment policies informed employees that their employment status was at-will and that they could be terminated at any time. However, one company's policy provided that the employer's President could enter into written agreements to modify employees' at-will employment status. Similarly, the second at-will policy, which prohibited company representatives from altering employees' at-will status, did not "require employees to refrain from seeking to change their at-will status or to agree that their at-will status could not be changed in any way." Thus, concluded the NLRB, both employers' at-will provisions "would not reasonably be interpreted to restrict an employee's right to engage in concerted attempts to change his or her employment-at-will status."
This guidance is helpful for employers in reviewing their at-will employment policies under NLRB scrutiny. These memorandums demonstrate that the NLRB views at-will employment policies more favorably so long as a policy's language does not prohibit the possibility of entering into employment agreements or collective bargaining agreements. The NLRB General Counsel's office cautioned that "the law in this area remains unsettled," which should cause every employer to review their handbook and/or employment status policies.