10 Oct NLRB DISMANTLING THE AT-WILL EMPLOYMENT RELATIONSHIP ONE CASE AT A TIME

The National Labor Relations Board (NLRB or “the Board”) continues its assault on basic contractual rights.  Its current target is the commonly used at-will disclaimer in employment contracts.  The Board has taken the position that employers violate the National Labor Relations Act (NLRA) simply by requiring employees to sign a form acknowledging at-will employment status.  NLRB Acting General Counsel, Lafe Solomon, is aggressively pursuing employers with broad at-will disclaimers that he contends have a “chilling effect” on employees’ rights under the NLRA.  Two recent cases exemplify the lengths to which the Board will go to push its extreme anti-employer agenda.

In American Red Cross, an NLRB Administrative Law Judge found that the Red Cross violated the NLRA by utilizing an employment contract provision providing that “the at-will employment relationship cannot be amended, modified or altered in any way.”  The Board reasoned that although the provision mentioned nothing about employees’ ability to engage in NLRA protected activity like collective bargaining or forming unions, the provision could reasonably be construed to limit the exercise of those rights.  The Red Cross was required to post notices in all of its workplaces and online assuring workers that the Red Cross would respect their NLRA rights.

Similarly, in Hyatt, the NLRB exercised its regulatory power, extracting a settlement from Hyatt and sending a powerful message to employers to proceed with caution regarding at-will disclaimers.  Hyatt required employees to sign an acknowledgment form providing that “no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and either Hyatt’s Executive Vice President/Chief Operating Officer or Hyatt’s President.”  The Board argued that maintaining such a provision can reasonably lead employees to believe that unionization is futile because the provision does not mention that at-will status could be affected by collective bargaining.

Acting General Counsel Solomon fully intends to continue his aggressive campaign against employment contract rights.  Based on these recent cases, all employers should have their at-will provisions professionally reviewed and possibly revised to prevent getting swept up in the NLRB’s aggressive agenda.  

Contact Masud Labor Law Group and ask to speak to one of our labor law attorneys for assistance with this or any other matter.