By Brian M. Stolzenbach.

In a blog post on June 27, 2012, we noted a recent ALJ decision in American Red Cross Arizona Blood Services Division, Case No. 28-CA-23443 (February 1, 2012), finding that an “at-will” policy in an employee handbook violated the Act because it would theoretically make employees think they could not band together in a union or otherwise to advocate for a change to that policy.  That case was settled before the NLRB could review the decision on appeal.  In the same post, we also mentioned another complaint issued shortly thereafter challenging a different “at-will” policy.  That case, too, was settled – this time before an ALJ could hear the case.  Nonetheless, these attacks on at-will policies were a bit scary to employers.

On Halloween, however, the NLRB General Counsel’s Division of Advice published two memoranda instructing two different Regional Offices to dismiss two other cases challenging at-will policies.  In American Red Cross, the challenged policy explicitly said employees could not “in any way” change their status as employees at-will.  The Division of Advice distinguished this from the policies at issue in the two more recent cases – observing that one specifically provided for possible changes if made in writing and signed by the company president and noting that the other merely said no one in management had authority to make changes to the policy.  One could argue that the latter is a distinction without a difference and that the General Counsel is trying to rein in some aggressive Regional Offices that seem to be mounting a frontal attack on at-will policies, in general.  In fact, the Division of Advice noted in its memoranda that the American Red Cross case was settled before the NLRB could actually review the decision and instructed all Regional Offices to consult with the Division of Advice before issuing a complaint challenging an at-will policy.  So maybe the NLRB’s General Counsel wants to put the brakes on the trend of attacking at-will policies.  If so, that would be a welcome development for employers throughout the country. 

In the meantime, however, employers now have some guidance from these two Advice Memos on how to write their at-will policies to pass muster with the NLRB’s General Counsel.