For the past two years, the NRLB General Counsel and the Board have issued guidance and decisions involving social media communications, and have established a new NLRB website--all emphasizing the protection of concerted activity under Section 7 of the NLRA. There seems to be an expanding concern at the NLRB for these rights as they apply to the 93% of the private American workforce that is non-union. Indeed, more employer social media policies have been invalidated than validated under this new NLRB microscope. Confidentiality requirements during internal employer investigations are under attack as well. See Banner Health Systems, 358 N.L.R.B. No. 98 (July 30, 2012).

Even the nearly universal and longstanding policies of American employers clarifying the "employment at-will" nature of the non-union employer/employee relationship have not appeared immune from re-examination by the General Counsel. Earlier this year an NLRB Administrative Law Judge decision involving American Red Cross Arizona and an NLRB complaint against Hyatt Hotels (both of which have now settled), raised questions as to the circumstances in which the NLRB might find "at-will" acknowledgements in employee handbooks "overly broad and discriminatory" in violation of Section 7.

Therefore, it is somewhat comforting that the NLRB's Division of Advice chose October 31 to clarify that the ghosts and goblins are not indeed assaulting the employment at-will doctrine in its entirety. In two new cases involving Rocha Transportation, Case 32-CA-086799, and Mimi's Cafe, Case 28-CA-084365, Associate General Counsel Barry Kearney sent memoranda to Region 32 and 28 respectively concluding that the employees "would not reasonably construe" the employment at-will policies of the respective employers "to restrict Section 7 activity." The Associate General Counsel instructed the Regional Directors to dismiss unfair labor practice charges alleging that the employers' employment at-will policies violated Section 8(a)(1) of the NLRA.

In the Rocha Transportation Matter, the charging party had challenged the part of the employer's employment at-will policy in the Employee Handbook which provided that:

"No manager, supervisor, or employee of Rocha Transportation 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."

In the Mimi's Cafe Matter, the charging party had challenged the part of the policy which provided that:

"No representative of the Company has authority to enter into any agreement contrary to the foregoing 'employment at-will' relationship."

Each employee of each employer was required by the employer to sign for the Handbook containing these provisions, as is commonplace among employers with handbooks.

In each case the Associate General Counsel analyzed the facts under the Lutheran Heritage Village Livonia standard, 343 NLRB 646, 646-47 (2004) to determine if the policy would "reasonably tend to chill employees in the exercise of their Section 7 rights." He concluded the challenged provisions did not explicitly restrict Section 7 activities, were not promulgated in response to union activity, and were not applied to restrict the exercise of Section 7 rights. The Associate General Counsel was chiefly interested in whether the employees "would reasonably construe the language [in the handbooks] to prohibit Section 7 activity." As noted, he concluded they would not.

In reaching this conclusion the Associate General Counsel "cautioned against reading particular phrases in isolation," and said the Board "will not find a violation simply because a rule could conceivably be read to restrict Section 7 activity." Context is essential. "Rules that are ambiguous as to their application to Section 7 activity and contain no limiting language or context that would clarify to employees that the rule does not restrict Section 7 rights are unlawful. In contrast, rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct such that they could not reasonably be construed to cover protected activity, are not unlawful." In contrasting ambiguous policies with those that include clarifying examples, the approach here is similar to that set out in the General Counsel's most recent guidance on the lawfulness of employer social media policies.

In Rocha Transportation and Mimi's Cafe, the Associate General Counsel found that the challenged provisions did 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." In contrast, in the ALJ decision earlier this year involving American Red Cross Arizona, the offending employer required every employee to sign the following acknowledgement, "I further agree that the at-will employment relationship cannot be amended, modified or altered in any way." In the Associate General Counsel's view, this was "essentially a waiver of the employee's right to advocate concertedly to change his/her at-will status."

There are no new Board decisions on this subject. Therefore, "because the law in this area remains unsettled," the Associate General Counsel has instructed all NLRB Regional Directors to submit to his office for guidance all cases "involving employer handbook provisions that restrict the future modification of an employee's at-will status." Given this continuing uncertainty, employers would be wise to consult with counsel regarding the lawfulness of their current polices on employment at-will and any changes to those policies under consideration.