Last month, EmployNews reported a National Labor Relations Board decision that concluded that an employment at-will policy in an employee handbook violated Section 7 of the National Labor Relations Act because it unlawfully interfered with employees' rights to organize and bargain for the terms and conditions of their employment. Employers expressed concern over the agency's position given that such policies are common if not universal.

In response, last week the NLRB's general counsel released a memorandum analyzing two other employers' at-will policies and concluding that they do not present the same Section 7 concerns. The general counsel distinguished policies that state that employment is at-will from the earlier case involving a handbook provision stating that at-will status could not be changed under any circumstances. The NLRB asserted that this language was misleading because employees had the right to bargain over at-will status should they choose to unionize.

In his new memo, the NLRB general counsel distinguished the non-compliant policy with two other employment at-will statements that do not contain this broad language. One policy states that only the President of the company has the authority to enter into an agreement modifying at-will employment status. The other policy explains that no company representatives are authorized to alter employment at-will status.

The NLRB general counsel stated that these policies do not violate Section 7 because they do not prohibit changes to employment at-will status. The examples provided only restrict those persons who are authorized on behalf of the company to make such changes. While this memo is not binding on the NLRB, it provides guidance for regional offices in enforcement proceedings. Employers should use this guidance to make certain their employment at-will policies do not cross the line established by the NLRB.