The Employment at Will Doctrine
Discrimination: Discrimination in employment based on race, color, religion, sex, sexual orientation, national origin, age, disability, or marital status is prohibited. Harassment based upon any of these factors is also prohibited and is discussed more fully in this Website under the practice area Sexual Harassment
Acquired Immune Deficience Syndrome (AIDS): Discrimination based upon having acquired immune deficiency syndrome (AIDS) or based upon having taken an AIDS test, or based upon results or perceived results is prohibited.
Jury Duty: An employer is prohibited from discharging an employee who attends jury duty.
Whistle-Blowing: Employers are forbidden to discharge or retaliate against an employee for his or her disclosing information involving a violation of state or federal law, or for refusing to participate in any conduct forbidden by law.
Workers Compensation: Employers are forbidden from threatening to discharge, discharging, intimidating or coercing any employee by reason of an employee’s valid claim or attempting to claim workers compensation.
Federal Provisions : Americans with Disabilities Act (ADA): This act prohibits disability discrimination for serious disabilities, as defined under the act, and states that employers must reasonably accommodate a disabled employee. The Age Discrimination in Employment Act (ADEA) forbids employee discrimination on the basis of age, with a minimum age requirement of 40. Finally, the Family Medical Leave Act (FMLA) provides that an employee may have up to 90 days unpaid leave for certain medical and family matters under certain circumstances. An employer may not demote or discharge an employee because of such leave and may not discriminate against or discharge an employee for filing a charge under the FMLA.
It is critical to note, however, that the employment at will doctrine does not apply when there is a valid written contract of employment. When an employment contract is definite in regard to its term, including a starting and ending date of employment and rate of pay, the terms of that contract will be enforced. Oral employment contracts are only enforceable if capable of being performed within one year.
On the other hand, the National Labor Relations Board (NLRB) recently (in 2013) challenged employment at-will disclaimers in employee handbooks . This is an example of the NLRB’s expansion of its enforcement efforts beyond the traditional unionized workplace setting. The NLRB has also recently taken issue with employers’ social media policies and sought to require employers to post notices to employees informing them of their right to join a labor union and other rights under the National Labor Relations Act (NLRA) . The agency is clearly becoming more active and looking for ways to regulate a broader group of employers than it has in the past.
At-will employment disclaimers are a staple of employee handbooks. It is common to define what at-will employment means, explain that an employee’s at-will status cannot be changed except in a writing signed by the company president, and require that an employee sign an acknowledgment of his or her at-will status. This approach protects employers from claims that employees have employment contracts, and it is now under attack by the NLRB.
Two recent actions demonstrate the NLRB’s new scrutiny of these employment at-will disclaimers. In February 2013, an NLRB Administrative Law Judge (ALJ) ruled the American Red Cross Arizona Blood Services Region violated Section 8(a)(1) of NLRA by having a provision in its employee handbook acknowledgment saying, “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” The ALJ ruled this provision could be interpreted to limit employees’ rights to engage in concerted activity in an effort to change their at-will status. The NLRA protects employees’ rights to engage in “concerted activity” to seek changes to the terms and conditions of their employment. The Red Cross revised its disclaimer, but the ALJ nonetheless required the Red Cross to inform its employees that the disclaimer had been revoked and removed from its handbook acknowledgment and post a notice to employees assuring them that it would not violate their NLRA rights.
Also in February 2013, the NLRB filed a complaint against Hyatt Hotels Corporation arguing the company’s required employee handbook acknowledgement form violated the NLRA’s protection of concerted activity. The NLRB alleged that several provisions in Hyatt’s handbook acknowledgement were overly broad and unlawfully limited employees’ rights to engage in concerted activity. Those provisions were:
- “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.
This matter was settled before there was a hearing on the complaint, with Hyatt agreeing to delete these at-will disclaimers from its handbook acknowledgment form, notify employees that the disclaimers had been revoked and removed from its handbook acknowledgment, and post a notice to employees assuring them that it would not violate their NLRA rights.
The NLRB’s focus on employment at-will disclaimers is another example of the agency’s increased enforcement efforts that can affect all employers – even those that don’t have unionized workplaces. The complaints against the Red Cross and Hyatt are the first attacks the NLRB has ever made against these common at-will disclaimers in handbook acknowledgments. These enforcement actions are an alarming development for employers due to the prevalence of such disclaimers in handbooks and handbook acknowledgment forms and their importance in defending against employee claims. Employers should have their employment at-will disclaimers in employee handbooks, handbook acknowledgment forms and other personnel documents reviewed by counsel to be sure they do not unlawfully limit employees’ rights to engage in concerted activity under the new analysis being used by the NLRB.The information provided above is intended to give you a basic understanding of the "Employment at Will" Doctrine, but this does not constitute legal advice and it cannot substitute for a thorough review and determination of individual employment issues, situations and requirements with your attorney.