Employment at Will Another look at Employee Handbook Provisions? 1. Many counsel advise employers to enunciate an at-will employment policy in

Transcription

1 Employment at Will Another look at Employee Handbook Provisions? 1 By Brenda Sutton-Wills 2 Many counsel advise employers to enunciate an at-will employment policy in their employee handbooks. An employer s aim to use the employee handbook to educate and inform employees of the employer s expectations and practices can be seemingly straightforward. Still, some employers have run afoul of the National Labor Relations Act in stating their policies in ways that have been found to have the effect of preventing protected concerted activity. Simply stated, employers need to avoid policies that have the effect of preventing organizing. In March 2015, NLRB General Counsel Richard Griffin, Jr., issued Memorandum GC explaining the Board s decisions involving employee handbook rules. Noting that most employers do not draft these handbooks with the goal of restricting protected activities, the Memorandum stated that the law 1 This note is published as part of the American Bar Association, Section of Labor and Employment Law Midwinter Meeting panel: The Status of Employment At-Will: So Many Exceptions, So Little Time. 2 Brenda Sutton-Wills is Staff Counsel with the California Teachers Association. She currently serves as an ABA Labor and Employment Ethics Section Co-Chair; and on the ABA Employment Rights and Responsibilities Ethics Subcommittee.

2 does not allow even well-intentioned rules that would inhibit employees from engaging in activities protected by the Act. The Memorandum noted that the Office of General Counsel continues to receive meritorious claims alleging unlawful employee handbook rules. The analysis of whether a work rule enunciated in an employee handbook had a chilling effect on employees Section 7 activity is conducted under the Board s decision in Lutheran Heritage Village-Livonia 343 NLRB 646 (2004). In the absence of a provision that explicitly prevents Section 7 activity, the review is undertaken from the perspective of how an employee could reasonably gauge his or her right to engage in protected activity in consulting the rule in question. In March 2014 the NLRB Office of the General Counsel issued an Advice 3 Memorandum in Lionbridge Technologies, examining whether an em ployer violated Section 8(a)(l) of the Act by maintaining in its employee handbook a policy that prohibits anyone other than the Em ployer's Senior Vice President from m odifying the em ployees' at-will em ploym ent status and further states that "[n]o statement, act, series of events or pattern of conduct can change this at-will [em ploym ent] relationship." The Board concluded that em ployees would not reasonably construe such a policy to 3 Case 19-CA

3 prohibit Section 7 activity. In this case, the Senior Vice President could be expected to have the authority to negotiate with a potential union representative and organizing would not be foreclosed. This underlying facts are in contrast with the facts considered in the Board s 2012 decision in American Red Cross Arizona Blood Services Case 28-CA (February 1, 2012) where employees were required to sign an acknowledgment form essentially waiving their right to engage in concerted activity to advocate to change their at-will status. The signed form stated: "I further agree that the at-will employment relationship cannot be amended, modified or altered in any way." The timing of an employer s highlighting of an at-will policy contained in a handbook can also violate the Act. Employers reminding employees engaged in a union organizing campaign that they are at-will and can be fired for any reason was found to chill Section 7 activities in Moisi & Son Trucking Inc. 197 NLRB 198 (1972). There a supervisor reminded employees that the company could find a legal reason to fire an employee who spoke in favor of the union.

4 At time of press, the NLRB is in transition, with Phillip Miscimarra in place as Acting Chair, and there are two open seats yet to be appointed by the new administration s nominees to the Board. Under Mr. Miscimarra s leadership, the Board s take on the proper perspective from which to view employee handbook provisions may change. In Verizon W ireless Inc. 365 NLRB No. 38 (February 24, 2017) Mr. Miscimarra lodged a strong dissent against the Board s standard viewed from the employee s perspective for measuring whether a handbook s provision unlawfully interfered with an employee s right to engage in protected activities under Section 7 of the Act. Under future NLRB leadership, whether an employee could reasonably construe a handbook s provisions to prohibit section 7 activities could potentially be replaced by a test that would balance worker rights against the employer s stated justifications for the rule. See also Mr. Miscimarra s dissent in W illiam Beaumont Hospital 363 NLRB No. 162 (April 13, 2016). Miscimarra s dissent in Verizon W ireless Inc. stated that the reasonably construe standard of Lutheran Heritage should be replaced: I would adopt a standard under which the Board evaluates an employer's workplace rule, policy, or handbook provision by striking a "proper balance"

5 that takes into account both (i) the legitimate justifications associated with the disputed rule and (ii) any adverse impact the rule may have on NLRA-protected activity, and a "facially neutral" policy, rule, or handbook provision-defined as a rule that does not expressly restrict NLRA-protected activity, was not adopted in response to NLRA-protected activity, and has not been applied to restrict NLRA-protected activity-should be declared unlawful only if the legitimate justifications an employer may have for maintaining the rule are outweighed by its potential adverse impact on Section 7 activity. W hile not specifically aimed at an employer s enunciation of its at-will employment policy, Mr. Miscimarra s dissent in the Board s employee handbook cases may illuminate the NLRB s advice and decisions on employee handbook provisions after the placement of two new board members who would potentially share the reasoning as stated in dissenting opinions.

6 It is unknown how the NLRB will in fact treat these cases going forward beyond the term of the current General Counsel and after the seating of the two vacant positions, and when any changes will be made to the NLRB s analysis of employee handbook rules. As it stands, Section 7 rights continue to be protected by the Act using the Lutheran Heritage test assessing how an employee might reasonably construe the provision in question.