The employment-at-will doctrine, followed in Arizona, provides that an employer can fire an employee for good cause or no cause at all – just not for an unlawful reason (such as based on the employee’s membership in a protected category like race, national origin, etc.). This doctrine has caught the attention of the National Labor Relations Board (NLRB).
Earlier this year, the NLRB took an aggressive approach toward invalidating the at-will statements that most employers include in their handbooks and employment agreements. At-will employment can be altered by contractual agreement between the employer and employee, so most employers include an at-will employment statement in their handbooks and offer letters and other employment documents to prevent these statements from being construed as a contract for employment that could alter the at-will relationship.
In American Red Cross Arizona Blood Services Division, an administrative law judge (ALJ) working on behalf of the NLRB determined that the following portion of an employment-at-will policy violated the National Labor Relations Act (NLRA):
I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.
The ALJ concluded that the policy violated the NLRA because it was essentially a waiver of the employee’s right to advocate concertedly to change his or her at-will employment status. The NLRB caused even more concern when its acting general counsel, Lafe Solomon, announced this as a focus area and was reported to have said the use of blanket at-will employment disclaimers may violate the NLRA.
On October 31, the NLRB’s associate general counsel’s office issued advice memoranda relating to two cases involving at-will employment statements, providing two examples it found acceptable:
No representative of the Company has authority to enter into any agreement contrary to the foregoing “employment at will” relationship. (Mimi’s Café); and
No manager, supervisor or employee of [Company] 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. (Rocha Transportation)
The general counsel’s office concluded that these statements do not violate the NLRA because the provisions do “not require employees to refrain from seeking to change their at-will status or to agree that their at-will status cannot be changed in any way.” Instead, the provisions simply prohibit the employer’s own representatives from modifying an employee’s at-will status.
In light of the recent advice, employers should review the at-will statements in their employment materials to determine if the statements require employees to waive their right to seek to change their at-will status. Employers can expect to see more on this topic in the future, given that the general counsel’s office warned that the law in this area remains unsettled and instructed the regional offices to submit all cases involving at-will statements to the board’s Division of Advice.