Fresh off its efforts to dictate what can and can’t be in a social networking policy, to bar class action waivers in arbitration agreements, and to require all employers to post notice regarding rights to organize, the National Labor Relations Board is now claiming that common language in at-will provisions may constitute a section 7 violation.
Section 7 of the National Labor Relations Act guarantees employees the rights to organize and bargain collectively. As reported by Abigail Rubenstein in today’s Employment Law 360 (subscription required), the NLRB has pursued claims against two employers over language that appears in the vast majority of at-will provisions.
According to the NLRB, the problem is not the at-will language per se. It’s the language that says that it can’t be changed except in a writing signed by a particular company representative.
The requirement is intended to preclude employees from arguing that a discussion with some manager modified the at-will provision. But according to two claims that the NLRB filed out of its Arizona region, saying that the at-will language can’t be modified could be interpreted to interfere with employees’ section 7 rights.
There are ways around this, such as modifying policies to say that the at-will provision can only be modified by an enforceable written agreement. But for now, if you’re not in Arizona, the best approach is probably to wait and see if this goes anywhere. The trend of the NLRB trying to extend its reach to the non-union workforce, however, is unmistakable.
[Update: November 1, 2012 -- As of yesterday, the NLRB has clarified its position on at-will disclaimers. In doing so, it specifically approved a provision saying that the employee's at will status could only be changed in a writing signed by the company president.]