Recent months have seen the National Labor Relations Board (NLRB) take efforts to regulate employer activity in new and often unprecedented ways. Two of the NLRB’s early efforts in this regard were the attempt through rulemaking to require employers to post a notice advising employees of their right to organize and the issuance of rules that would speed up the union election process. 

In addition to those rulemaking attempts (which have been blocked at least temporarily), the Board has targeted employers’ policies on a case-by-case basis in a series of decisions restricting management rights in the non-union setting by alleging violations of employees’ right to engage in protected concerted activity under Section 7 of the National Labor Relations Act (NLRA). Examples include the restrictions on social media policies, confidentiality rules, solicitation rules, and rules against harassment.  Two recent attacks include challenges to “at-will” statements and disclaimers in employee handbooks and restrictions on an employer’s right to limit access to its property by off-duty employees.

“At-Will” Disclaimers

In a recent speech at the Annual Meeting of the Connecticut Bar Association, the NLRB’s Acting General Counsel (AGC) Lafe Solomon opined that if an employee reads an “at-will” disclaimer and could reasonably believe that unionization and a valid collective bargaining agreement cannot alter his or her “at-will” status, the employee could interpret the statement to mean that unionization is futile. In that case, the at-will disclaimer might violate the NLRA, according to Solomon.

There have now been two recent cases in which the Office of the General Counsel has argued that language in an “at-will” disclaimer was unlawful, both arising in Region 28 (Phoenix, Arizona). In American Red Cross Arizona Blood Services Region, 28-CA-23443 (Feb. 1, 2012), an NLRB administrative law judge (ALJ) held that the employer violated Section 8(a)(1) of the Act by maintaining an “at-will” acknowledgment that stated: “I further agree that the ‘at-will’ employment relationship cannot be amended, modified or altered in any way.” The ALJ opined that “the signing of the acknowledgement form is essentially a waiver in which an employee agrees that his/her ‘at-will’ status cannot change, thereby relinquishing his/her right to advocate concertedly, whether represented by a union or not, to change his/her ‘at-will’ status.” That decision was remanded to the Region by the NLRB on April 20, 2012, on a joint motion to effectuate compliance with the order.

Less than a month after the American Red Cross case was decided, the same Region of the Board filed a complaint against an international hotelier over a disclaimer in a handbook that contained an “at-will” acknowledgment. In this case, the Region challenged the following language in the disclaimer: “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 [the hotel’s] Executive Vice-President/Chief Operating Officer or [the hotel’s] President.”

The case was settled before the Office of the General Counsel was required to elaborate on its position. However, the only reasonable conclusion to be drawn from the complaint is that the AGC believes the language quoted above implies to employees that they cannot vary their “at-will” status by selecting a union to represent them and entering into a collective bargaining agreement. 

So where does this leave an employer? Many employers adopt similar language because they want to avoid claims by employees that an oral or written statement by a person with apparent (but not actual) authority to bind the company somehow created an enforceable employment contract. In fact, some states, like South Carolina, have specific statutes addressing the use of disclaimers to avoid a finding that an employee had a contract of employment and was not employed “at will.”                   

Clearly employers must weigh the benefits of disclaimers and their usefulness in avoiding employment litigation against the heightened scrutiny the Board is placing on their use. If beneficial, then an “at-will” disclaimer should be drafted in a way that protects the employer’s legitimate interests while not drawing fire from the NLRB’s Office of the General Counsel.

Off-Duty Access Rules

In Sodexo America, LLC, 358 NLRB No. 79 (July 2012), the Board expanded the opportunity for off-duty employees to access their employer’s property to engage in union organizing. Sodexo was a subcontractor on the campus of USC University Hospital and, as such, was required to adopt the hospital’s rule about access while off duty. The rule stated: “Off-duty employees are not allowed to enter or re-enter the interior of the hospital except to visit a patient, receive medical treatment or to conduct hospital-related business.”

Relying on Tri-County Medical Center, 222 NLRB 1089 (1976), the Board found the Sodexo rule overbroad. Tri-County held that a “no-access” rule was unlawful unless it: (1) limits the access restriction solely to the interior of the facility; (2) is clearly disseminated to all employees; and (3) applies to all off-duty access, not just union activity. The Board held that the Sodexo rule violated the third prong of the Tri-County mandate because it allowed off-duty employees back on the property to conduct hospital-related business. In the Board’s view, this allowed management discretion to allow virtually any access to the property for business reasons management approved.

Interestingly, the NLRB found that the exceptions which allowed off-duty employees to return to the property to visit a patient or to get medical care did not violate Tri-County. The reason was that the exceptions only extended to the off-duty employees the same access as available to members of the general public.

There is little consolation for employers in this ruling. It merely indicates that a rule which states that the off-duty employees have the same rights of access to the interior of their employer’s facilities as the general public will pass muster with the Board. The downside of Sodexo is that it is nearly impossible to conceive a “no-access” rule for off-duty employees that would be lawful if off-duty employees are allowed any access to the interior of the facilities for any reason beyond what is available to the general public. As pointed out in the dissent, Sodexo holds, in effect, that an employer cannot have a valid “no access” rule for off-duty employees if it allows employees to re-enter the interior of the workplace for such simple tasks as picking up a paycheck or completing work-related paperwork.

For employers that want to restrict off-duty employee access, there seem to be only two options: (1) deny off-duty employees access to the entire interior of the facility for all reasons; or (2) establish some very clear delineation of working areas to which all access is denied, as opposed to others in which all access is not denied (for example, allowing access to a designated office portion of the facility and denying it to all manufacturing areas). Whether any rule developed under the second alternative above will withstand Board scrutiny can only be determined by future NLRB decisions. One thing is sure – Sodexo invites union challenges to any “no-access” rule.

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