Lionbridge Technologies performs IT services on the Microsoft campus in Washington state, as well as other locations around the world. There is an Employee Handbook which governs the terms and conditions of employment at the Washington facility. The Handbook contains an at-will employment clause, which states "Employment is on an at-will basis unless otherwise stated in a written individual employment agreement signed by the Senior Vice President of Human Resources. This means that employment may be terminated by the employee or Employer at any time, for any reason or for no reason, and with or without prior notice. No one has the authority to make any express or implied representations in connection with, or in any way limit, an employee's right to resign or the Employer's right to terminate an employee at any time, for any reason or for no reason, with or without prior notice. Nothing in this handbook creates an employment agreement, express or implied, or any other agreement between any employee and the Employer. No statement, act, series of acts or pattern of conduct can change this at-will relationship."
The NLRB ruled that this at-will clause does not violate Section 8(a)(1) of the National Labor Relations Act ("Act") because employees would not reasonably construe the policy to prohibit protected concerted activity. Here the Board explained that rules which clarify and restrict their scope by including examples of clearly illegal or unprotected activity are not unlawful. The provision in question at Lionbridge describes the employees' current employment status. The statement that only the Senior Vice President for Human Resources can modify that status is not directed at particular conduct, but rather protects the employee against employee claims that the Handbook created an employment contract.
An employer can violate the Act by maintaining a rule even if the employer does not enforce the rule against any employee. There is a two-step inquiry to determine if the rule would likely chill employees' rights. First, a work rule is unlawful if it explicitly restricts protected concerted activity. Second, the rule will be found to violate the Act if employees would reasonably construe the language to prohibit protected activity, if the rule was promulgated in response to union activity, or the rule has been applied to restrict protected activity.
The Board found that the provision's language regarding no statements or acts can change the at-will status could be construed to prohibit protected activity, but here it would not reasonably be construed as such. The provision is not phrased as a work rule aimed at employee conduct, nor does it threaten employees with discipline for engaging in protected activity or ask employees to waive their rights. Therefore, the at-will clause in its entirety and in context cannot be found to violate the Act.
It is important when drafting an at-will employment clause, to make sure that the language cannot be interpreted as prohibiting employees from engaging in protected, concerted activity. The purpose of this clause is essentially to make clear that the Handbook itself does not create an employment contract, and that all employees serve at-will unless they have a separate employment contract with the school for a certain period of time. If you have concerns about your at-will employment language, contact your attorney for review.
NLRB Advice Memorandum, Lionbridge Technologies, Case 19-CA-115285