Lately

I have been writing a lot about the National Labor Relations Board and its increased activity in regulating the workplace. As many of you know from reading this column, Connecticut, like many states, is an at-will employment state. That means that employees can be terminated from employment for any reason or no reason at all, as long as they are not terminated for an illegal reason. An illegal reason would be something like discrimination or retaliation. Frequently employers, regardless of size, prepare an employee handbook which specifies that employees are at-will employees and that they have no guarantee of continued employment. The handbooks usually state that there can be no modification of this at-will policy absent a writing signed by the boss. Recently, the NLRB has called into question the legitimacy of these at-will handbook statements and has sent many employers scrambling to modify their policies to conform to the law as it interpreted by the NLRB. Last Tuesdays election solidified the need for employers to make sure that their policies comply with the law. With a democrat in the White House for the next four years, there is unlikely to be any modification in the NLRBs position. In fact the NLRB could become more aggressive in ensuring employees rights to act together to preserve workplace rights. While it sounds like bad news for employers, ensuring a bit more job security for workers could lead to greater productivity and a happier workforce. In any event, employers can still preserve their rights to enforce at-will employment policies in a number of ways without running afoul of the NLRBs policies. First, it has always been my opinion that employee handbooks create more problems than they solve. Employment law is fairly clear in that employees are employees at-will absent some contractual obligation. An employers obligations to employees are pretty well set forth in state and federal law. There is no need to provide an employee handbook which emphasizes those laws, or which creates greater obligations than an employer wants to take on. Employee handbooks can be cited as employment contracts, therefore tying the hands of employers who need flexibility in the hiring and firing process. Policies dealing with progressive discipline, promotions, and seniority, for example look like contractual commitments, and put an employer in a bind. But if an employer insists on having an employee handbook, then that employer needs to take a look at the at-will language to ensure that it is enforceable. The NLRB has found that language which makes it seem as if collective action by employees could never be used to modify the at-will doctrine, is probably illegal. That is because the NLRB ensures that eligible employees should be allowed to engage in concerted action for the improvement of wages, hours, and working conditions. That could be done through the formation of a union. Or it could simply be done through the use of social media to express the needs of the employees in the workplace.

 But if a statement in the handbook makes it look like concerted action would be pointless to change the at-will employment statement set forth in the handbook, then the statement could be found to be unenforceable. So a smart employer, if it needs to have a handbook, will simply say that an employees employment is at-will and governed by law. It will say that no representative of the employer, save for the chief executive, has authority to modify the at-will nature of the relationship. And it might advise the employees that they have the right under state or federal law to organize and collectively seek improvement of their working conditions. Eric Brown is an attorney from Waterbury. He can be reached at 203-676- 9110 or at www.TheLaborLawyer.com.