National Labor Relations Board gets new life

Does your company have an employment-at-will policy? Does it provide that it can only be amended in writing, by the president or some other designated officer of the company?

“Of course,” you say. “That’s Human Resources 101!”

Tell that to the National Labor Relations Board.

Marginalized by the enactment of federal legislation protecting employees, the NLRB is searching for a way to remain relevant. Scrutinizing the company handbook is its method of choice.

The NRLB has decided that at-will statements and other common policies can violate the employee’s Section 7 right to concerted activity. Recently, it attacked an at-will statement that said, “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.”

The NLRB viewed this as a waiver of the employee’s right to advocate concertedly, with or without union representation. It also found it premised employment on the agreement not to enter into any contract or to make any efforts or to engage in conduct that could result in union representation, all of which would or could amend, modify or alter the at-will relationship.

Hyatt Hotels Corp.’s policy was challenged by the NLRB in three parts: “I understand my employment is at-will”; “I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and either Hyatt’s executive vice president/chief operating officer or president”; and “The sole exception to this is the at-will status of my employment, which can only be changed in a writing signed by me and either Hyatt’s executive vice president/chief operating officer or president.”

This language clearly provides for an amendment to the at-will policy.

The NLRB also attacked Hyatt’s social media policy, code of business conduct and ethics, and policies regarding confidential information, civic involvement, scheduling, confidential investigations, cooperating in an investigation and non-disparagement. The case ended in an informal settlement, leaving the issue of employee handbooks securely within the purview of the NLRB, until a court decides the issue.

Compare language in your company handbook to language attacked by the NLRB. After all, who wants to be the company that breathes new life into the NLRB?

Byrona Maule is a labor and employment attorney and director of Oklahoma City-based Phillips Murrah law firm. Email