Most good employer handbooks have clauses that state that employees are at-will, unless that status is changed by the company’s top executive in writing. These clauses are designed to prevent an employee claim that his or her “at will” employment status was changed based on some casual remark by a supervisor or manager.
However, the NLRB (via the NLRB’s Phoenix regional office) recently issued a complaint against Hyatt Corp. that accused the hotel chain of violating the NLRB with its handbook provisions requiring employees to acknowledge they are employed at will and that at-will status may only be altered by a Hyatt executive. The complaint has left many labor law practitioners scratching their heads.
The NLRB’s acting general counsel found that certain common employee acknowledgement provisions are overly broad and discriminatory and coercive:
• “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 Hyatt’s president or executive vice president/COO.
• “[T]he at-will status of my employment… can only be changed in a writing” signed by the employee and one of the two Hyatt executives.
The rationale for these controversial findings appears to be that employees required to sign an at-will disclaimer acknowledgement will “reasonably” believe they have agreed not to make any efforts, or to engage in conduct that could result in union representation and in a collective-bargaining agreement, which would change the at-will relationship to a “just cause” termination one. By this reasoning, such a belief would prevent employees from exercising their rights under federal labor law.
Hyatt settled the complaint a few weeks ago. In the settlement Hyatt agreed not to maintain the “overly broad” employee acknowledgement form. The hotel chain also agreed to revise or rescind employees’ acknowledgement forms that included the challenged at-will provision.
This may not be an isolated case. Last week, Acting General Counsel Lafe Solomon, speaking at the Connecticut Bar Association’s annual meeting, indicated that blanket at-will statements themselves will face closer NLRB scrutiny as the next agency enforcement target, according to the Connecticut Employment Law Blog.
We will keep you posted on developments in this area, but in the meantime, be sure to take particular care when drafting at-will clauses in employee handbooks.