Continuing in our series of Employment Law IQ, what would you do?
Scenario: Valerie recently graduated from FGCU and got her first job, a position as HR Director for Hire You Too, a local, non-union staffing agency. Though Hire You Too has been in business for a number of years, Valerie is the company’s first dedicated HR employee. Eager to establish herself as an important member of the Hire You Too team, the first thing Valerie does is review Hire You Too’s Employee Handbook. While most of the Handbook looks good, Valerie wants to revise the Acknowledgement, because she remembers from her “Labor 101 Class” that the NLRB has cracked down on at will employment disclaimers.
Which of the following statements should Valerie avoid for the Acknowledgement?
A. I further agree that the at will employment relationship cannot be amended, modified, or altered in any way.
B. The relationship between you and Hire You Too is employment at will. This means that your employment can be terminated at any time for any reason, with or without cause, by you or Hire You Too.
C. Employment with Hire You Too is employment at will. Only the CEO of Hire You Too has the authority to alter the at will employment relationship, and then only in writing.
D. Valerie can choose any one of the three, since Hire You Too is a non-union workplace and does not have to worry about the NLRA.
The correct answer is A. Section 7 of the NLRA applies to all employers, whether they are unionized or not. With respect to the at will provision, it may be difficult at first glance to even determine the difference between A, B, and C, according to one NLRB decision, statement A is an overly broad restraint on the right of employees to engage in protected activity. According to the NLRB Acting General Counsel, choices B and C are fine because they do not use the pronoun “I.” Using the pronoun “I,” however, could be a waiver of the employee’s right to advocate concertedly to change his/her at will status.
HR Takeaway: Sound ridiculous? Most employment law bloggers agree, and think the NLRB is over-reaching here. There is no need to go out and immediately revise your Acknowledgements, as this area is still unsettled, to say the least. HR professionals should keep a close eye on this developing area of law.