According to an NLRB press release, “[t]he Advice Memos are provided as guidance for employers and human resource professionals in a developing area that has drawn considerable attention recently.” The press release concluded: “Because Board law in this area remains unsettled, the Acting General Counsel is asking all Regional Offices to submit cases involving employer handbook at-will provisions to the Division of Advice for further analysis and coordination.”
Any non-union company which has an employee handbook and might find itself the target of a union organizing campaign should carefully scrutinize any and all at-will policies in the handbook. If a union organizing campaign begins, it is certain that the union will review the employee handbook and will file an unfair labor practice charge at the NLRB if the at-will policy is improperly worded. Other policies which are vulnerable to attack are confidentiality, social media, union-free, off duty access to property, no solicitation/no distribution, conflicts of interest and outside employment. Unlawful policies must be rescinded or reworded, and employers must notify employees in writing that they have done so, that they will not maintain or enforce such unlawful policies, and that they will not violate the NLRA in any like or related manner. Thus, if the union is successful in attacking these policies, that could bolster their image in the eyes of the employees and influence the outcome of the organizing campaign.