At-will employment language at risk

It's quite common for employment agreements and employee handbooks to include language that the employee's employment is at-will, that either employer or employee can terminate the employment relationship at any time for any reason, and that the at-will nature of the relationship can only be changed by the signature of a senior employer officer. The US agency charged with overseeing union elections and stopping unfair labor practices has publicly and successfully challenged this rather standard employment practice. Employers should take heed.

The National Labor Relations Board has posited in two adjudications (before administrative law judges) that such language interferes with employees' rights under section 7 of the National Labor Relations Act to engage in activity to form unions in order to improve working conditions. In one of those cases, Arizona Red Cross Blood Services, Arizona Region (Case No. 28-CA-023443), the administrative law judge agreed with the NLRB General Counsel on this point. In ruling that such language constitutes a violation of the NLRA, the judge wrote:

[Such at-will language] is essentially a waiver in which an employee agrees that his/her at-will status cannot change, thereby relinquishing his/her right to advocate concertedly, whether represented by a union or not, to change his/her at-will status. For all practical purposes, the clause in question premises employment on an employee's agreement not to enter into any contract, to make any efforts, or to engage in conduct that could result in union representation and a collective bargaining agreement, which would amend, modify or alter the at-will relationship. Clearly such a clause would reasonably chill employees who were interested in exercising their Section 7 rights

(emphasis added).

Yet another adjudication was brought by the NLRB Acting General Counsel attacking the legality of similar at-will language Hyatt Hotels used in its employment documents. This case settled without a decision.

In lieu of the commonly-used wording, employers should consider revising at-will employment language so as to not run afoul of the NLRA.

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