NLRB Advice Memos find Selected At-Will Provisions to be Lawful

On October 31, 2012, the National Labor Relations Board (NLRB) Acting General Counsel released an analysis of at-will employment clauses in two employee handbooks, ultimately concluding that neither violated the law. 

Employees had filed charges with the NLRB alleging that the handbooks contained overbroad at-will policies which suggested to employees that they could not engage in activities which are otherwise protected by the National Labor Relations Act (NLRA). In reviewing the selected policies, the NLRB noted that an employer violates the Act when it implements and enforces policies which explicitly prohibit NLRA-protected union or concerted activities, and that even if no such explicit policy exists, general policies or rules can be unlawful if employees could construe the language to prohibit this type of activity. 

Despite these new advice memos, this area of the law remains somewhat unsettled, and accordingly, the NLRB has sought further information from its regional offices for further analysis and evaluation. In the meantime, however, employers are cautioned to review their at-will policies and procedures, and to consult with counsel to ensure that the policies are not unlawfully overbroad.