San Francisco partner Heather Sager was quoted in Human Resource Executive Online in an article titled, “NLRB Eyes At-Will Policies.”
The article discusses recent decisions issued by the National Labor Relations Board (NLRB) that suggest an increased focus on employers accused of violating union and non-union employees' rights in written policies containing "at-will" clauses.
Work rules and policies that explicitly prohibit protected union or concerted activity violate the National Labor Relations Act and the NLRB's Acting General Counsel recently released an analysis of two "at-will" clauses that were found to be lawful. In those cases, companies faced allegations that their handbook wording defined "at-will" employment so broadly that employees might feel they could not engage in protected activity.
Heather Sager said that human resource leaders should be careful about using any "at-will" language.
"The lesson from all of the recent Board advice and rulings is to examine all policy communications with a critical eye toward whether they could possibly be read to restrict an employee’s rights to discuss the terms and conditions of his or her employment with other employees [or with management]," she said.
"If there’s even a potential the language could be read in that way, you should consider a revision. I don’t think this type of focus has historically been applied in a non-union workplace, and so I think that’s probably the largest change for HR. We now have to think of even non-union workplaces as coming under Board scrutiny."