In yesterday’s Advisor, BLR editor and attorney Patricia Trainor SPHR clarified National Labor Relations Board (NLRB) pronouncements on confidentiality and access; today, NLRB and “at-will” statements, plus an introduction to the all-in-one HR Website, HR.BLR.com.
Trainor is Managing Editor of BLR’s human resources and employment law publications.
At-Will Disclaimer Now an At-Risk Disclaimer
For years, employers have been advised to include in their employee handbooks a prominent “at-will” disclaimer that makes it clear that the handbook does not create a contract. Now the suddenly hyperactive NLRB says that might be an unfair labor practice.
Your handbook probably contains language similar to this:
“I understand my employment is “at-will.” This means I am free to separate my employment at any time, for any reason, and [Employer] has these same rights. Nothing in this handbook is intended to change my at-will employment status. 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 [Employer’s] Vice President/Chief Operating Officer or [Employer’s] President.”
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Not So Fast, Says the NLRB
Now comes news that handbook disclaimers may constitute an unfair labor practice by deterring employees from exercising their rights to engage in concerted activities regarding the terms and conditions of employment and to join a union.
These rights are granted to private employees in Section 7 of the National Labor Relations Act (NLRA). Section 8 of the NLRA prohibits employers from interfering with, restraining, or coercing employees in the exercise of their Section 7 rights.
If you are like most HR managers, your response is: “Are you kidding?” Unfortunately, no joking here. The NLRB’s Acting General Counsel, Lafe Solomon, filed a complaint against Hyatt Hotels in Phoenix, Arizona, stating that the disclaimer quoted above violates Section 8 of the NLRA (NLRB v. Hyatt Hotel Corp., Case 28-CA-061114).
There is no written opinion analyzing whether the complaint had merit in this regard, because it settled after Hyatt agreed to post notices at its hotels stating that it would no longer maintain the “overly broad acknowledgement forms.”
It appears that the rationale for Solomon’s stance is that broad at-will disclaimers may lead employees to conclude that they cannot change their employment status through unionization.
What Should Employers Do?
The most prudent course of action at this point is to make sure that employee handbook at-will disclaimers expressly state that they do not affect employees’ right alter their at-will status through a collective bargaining agreement.
Bottom Line: From social media policies to employee handbooks, and from discrimination investigations to off-duty access to employer property employers should keep in mind the NLRA along with the myriad of other employment laws affecting workplace conduct.
New aggressive NLRB rulings—a challenge, but certainly not your only challenge. In HR, if it’s not one thing, it’s another. Like FMLA intermittent leave, overtime hassles, ADA accommodation, and then on top of that whatever the agencies and courts throw in your way.
Find out what the buzz is all about. Take a no-cost look at HR.BLR.com, solve your top problem, and get a complimentary gift.
You need a go-to resource, and our editors recommend the “everything-HR-in-one website,” HR.BLR.com. As an example of what you will find, here are some policy recommendations concerning e-mail, excerpted from a sample policy on the website:
Privacy. The director of information services can override any individual password and thus has access to all e-mail messages in order to ensure compliance with company policy. This means that employees do not have an expectation of privacy in their company e-mail or any other information stored or accessed on company computers.
E-mail review. All e-mail is subject to review by management. Your use of the e-mail system grants consent to the review of any of the messages to or from you in the system in printed form or in any other medium.
Solicitation. In line with our general non-solicitation policy, e-mail must not be used to solicit for outside business ventures, personal parties, social meetings, charities, membership in any organization, political causes, religious causes, or other matters not connected to the company’s business.
We should point out that this is just one of hundreds of sample policies on the site. (You’ll also find analysis of laws and issues, job descriptions, and complete training materials for hundreds of HR topics.)
You can examine the entire HR.BLR.com program free of any cost or commitment. It’s quite remarkable—30 years of accumulated HR knowledge, tools, and skills gathered in one place and accessible at the click of a mouse.
What’s more, we’ll supply a free downloadable copy of our special report, Critical HR Recordkeeping—From Hiring to Termination, just for looking at HR.BLR.com. If you’d like to try it at absolutely no cost or obligation to continue (and get the special report, no matter what you decide), go here.