On October 31st
, the National Labor Relations Board (NLRB) issued two advice memos in which it concluded that the employment at-will policies in two employers’ employee handbooks did not restrict employees’ rights to participate in “concerted activity” under Section 7 of the National Labor Relations Act (NLRA).
In the first employee handbook at issue, Rocha Transportation, a California-based company, advised employees in relevant part that:
No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.
Similarly, in the second handbook at issue, Mimi’s Café, a restaurant operator based in Arizona, advised employees in relevant part that:
No representative of the Company has authority to enter into any agreement contrary to the foregoing “employment at-will” relationship.
In complaining to the NLRB, Rocha Transportation and Mimi’s Café employees alleged that the above language is overbroad and would chill employees’ Section 7 right to challenge or change the employers’ at-will employment policies through collective bargaining. The NLRB disagreed. Specifically, the NLRB distinguished the at-will language contained in the Rocha Transportation and Mimi’s Café handbooks from the at-will language set forth in an American Red Cross employee handbook, which an Administrative Law Judge had previously decided violated the NLRA. The at-will language in the American Red Cross employee handbook provided in relevant part:
I [the employee] further agree that the at-will employment relationship cannot be amended, modified or altered in any way.
The NLRB opined that, unlike the language in the American Red Cross handbook, the language in the Rocha Transportation and Mimi’s Café handbooks did not require employees to waive their Section 7 rights to “advocate concertedly” to challenge or change their at-will status. The NLRB also advised that while the at-will language in the Rocha Transportation and Mimi’s Café handbooks prohibited company representatives from modifying the at-will relationship, such language cannot be reasonably construed to restrict an employee’s Section 7 right to enter into collective bargaining with an employer to change the employment at-will relationship.
In light of the NLRB’s guidance in the Rocha Transportation and Mimi’s Café advice memos, employers can avoid drafting employment at-will policies that will run afoul of the NLRA by refraining from using language in which employees effectively waive their right to engage in concerted attempts to change their at-will employment status. These advice memos position the at-will provisions in the Rocha Transportation and Mimi’s Café handbooks as examples of language that does not violate the NLRA.