Employers almost universally include language in employee handbook acknowledgements confirming the at-will nature of the employment relationship. In some cases, these statements go further, stating that this relationship cannot be changed absent written consent by the employer. In February, a National Labor Relations Board (NLRB) Administrative Law Judge declared such language to be in violation of Section 8(a)(1) of the NLRA, because it could interfere with employees' rights to engage in protected concerted activity.

In American Red Cross Arizona Blood Services Region, the NLRB's General Counsel included a challenge to the employer's handbook acknowledgement, which stated that the at-will employment relationship could not be "amended, modified or altered in any way." The NLRB argued that this language would have a chilling effect on any employee attempts to engage in collective bargaining or collective action, because any such action could result in modification of the employment relationship. The ALJ agreed, concluding that the employer had engaged in an unfair labor practice.

This case was settled after the ALJ's opinion was issued, and the full NLRB did not have the opportunity to review this decision. However, based on the NLRB's counsel's position, it appears that the Board will administratively challenge similar language in employee handbooks, contracts and applications. Unless this position is rejected by the full Board or by federal courts, employers may want to consider amending language in such documents to remove any implication that employees are unable to change the employment relationship through legally protected means.

The NLRB's position in this case is another demonstration of the aggressive position taken by the agency with respect to its jurisdiction over non-unionized employee relations, and its challenge to common, long-standing employer practices.