“At-Will” Statement vs. National Labor Relations Act

In the news recently, there has been mention of the National Labor Relations Act (NLRA) and the National Labor Relations Board (NLRB). The NLRA is a federal act, otherwise known as the Wagner Act. The NLRA was enacted in 1935 “to diminish the causes of labor disputes burdening or obstructing interstate and foreign commerce, to create a National Labor Relations Board, and for other purposes.” The NLRB was established to oversee and monitor the NLRA.

The key principle behind the NLRA is to provide protection to employees, regardless of union membership status, in concerted and protected activities such as organizing, and protecting employees as a “class.” The NLRB oversees these activities for compliance with the NLRA. The function of the NLRB to prosecute violations of the NLRA has been reaching further into employers who do not have unionized employees, specifically in the area of “at-will” employment.

The NLRB has most recently challenged the “at-will” employment relationship disclaimers that many employers have in employment applications, offer letters, policy statements and employee handbooks. The NLRB challenged that some of the statements typically contained in employment at-will policies (e.g. “I acknowledge 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 the Company’s president or executive vice president/COO.”) may be in violation of the NLRA.

At this point, the NLRB has only taken this issue up in the state of Arizona and the final outcome has yet to be decided in the courts. One alternative an employer may want to consider is simply changing this portion of its at-will statement to “I acknowledge that my at-will employment status can only be changed if noted in a written agreement.” According to many legal blogs authored by attorneys, it seems that this change would meet the legal challenges that have been put forth to date by the NLRB.

Employers seeking additional assistance regarding the company’s “at-will” employment statements may want to reach out to their HR department for guidance.