In recent months, the National Labor Relations Board (“NLRB”) has demonstrated that it intends to remain relevant despite the downward trend in union participation in the U.S. To do so, the NLRB has increased enforcement action against non-union employers and in new areas of enforcement. The trend started in recent years with the NLRB’s involvement with social media.
Recently, however, the NLRB has issued complaints in several recent cases in areas where it had virtually never acted before – primarily focusing on employer policies and procedures. Over the past few months, three particular areas of concern have emerged: (1) “at-will” employment clauses; (2) policies requiring confidentiality during investigations; and (3) waiver of collective or class action claims by employees. The cases are described in more detail below. It has now become critical that all employers doing business in the U.S. – whether union or non-union – evaluate and amend their policies to avoid being the target of an NLRB charge.
Certain “At-Will” Clauses May be Illegal
In recent months, the NLRB has pursued employers for including "at-will" acknowledgements in employee handbooks which are "overly broad and discriminatory." The allegedly problematic language stems from at-will acknowledgements whereby employers request employees to acknowledge that nothing can alter their status as at-will employees.
The crux of the issue for the NLRB is that these types of at-will acknowledgements, which are staples of virtually every employee handbook in the United States, violate the National Labor Relations Act by chilling concerted activities because employees could believe that representation by a union and the collective bargaining process could not be used to change the employees' status as at-will.
So far, the NLRB has settled the matter with the employers who have agreed to modify the offending language.
The NLRB's position on at-will acknowledgements is certainly controversial, and has caused a firestorm of complaints from employers across the United States. And, while the recent decisions have only occurred at the regional level, employers may still want to consider ways to avoid a similar fate. One option for employers is to include a statement in the at-will clause that the at-will status does not interfere with the employees' right to join with others to work together to alter the terms and conditions of employment, including at-will status. However, based on business needs and circumstances, employers may also opt to wait to see how the NLRB's position is handled in courts in the future.