July 18, 2012

Is your at-will employment policy at risk?

Posted in Acknowledgment, At-will Employment, Collective Bargaining, Contracts, Disclaimers, Disclaimers, Employee Handbooks, National Labor Relations Act, Protected Concerted Activity tagged , , , , , , , , at 10:39 am by Tom Jacobson

At-will employment is perceived as a sacred cow for most employers, but in a pair of recent cases the National Labor Relations Board (NLRB) has successfully challenged the at-will employment policies of two U.S. employers.

Generally speaking, at-will employment is the concept that employees are employed for no particular duration. This means that either the at-will employee or his/her employer may end their employment relationship at any time, with or without notice, and with or without cause. The vast majority of Minnesota employees are at-will employees. The polar opposite of at-will employment is employment subject to contractual terms, such as a union contract.

When improperly written, employee handbooks and similar written policies can be interpreted as contracts which, contrary to the at-will concept, give employees the right to continued employment, pre-termination disciplinary actions and/or other protections. Thus, to preserve the at-will relationship, astute employers include in their employee handbooks and other policy documentation language disclaiming any contractual relationship and confirming the at-will status.

These types of disclaimers were recently challenged by the NLRB in the cases of Hyatt Hotels Corporation and American Red Cross Arizona Blood Services Region. The Hyatt case involved an acknowledgment form which indicated that the employees’ at-will status could not be altered except by a written statement signed by the employee and specified company executives. Similarly, the American Red Cross case involved a disclaimer which stated that the employees’ at-will status could not be amended, modified or altered in any way.

The NLRB argued that these limitations on how the employees’ at-will status could be changed were unlawful interference with the employees’ rights to engage in protected concerted activity, such as collective bargaining. The Hyatt case was settled when Hyatt agreed, among other things, to discontinue using the challenged language in its acknowledgment form. The American Red Cross case resulted in the NLRB issuing an order compelling the employer to cease and desist from using the disputed language in its forms.

What you need to know: To preserve the at-will employment relationship, employee handbooks and related policy documentation must include appropriate disclaimers.  However, to reduce the risk of a legal challenge, those disclaimers must be carefully written so as to not interfere with employees’ rights under the National Labor Relations Act. Existing disclaimers should be reviewed by legal counsel for compliance in light of these recent NLRB cases. 

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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July 3, 2012

Now Arbitrating at a Forum Near You

Posted in Alternative Dispute Resolution, Arbitration, Mediation tagged , , , , , , , at 4:32 pm by Tom Jacobson

I am pleased to announce that I recently completed Minnesota’s Certified Civil Arbitration Training and am now included on the Minnesota Supreme Court’s Adjudicative/Evaluative Roster of Rule 114 Neutrals.  Cutting through the legalese, this means I am now available to serve as an arbitrator in civil disputes pending in Minnesota.

So, just what is arbitration? The Minnesota Judicial Branch describes arbitration as:

A forum in which each party and its counsel present its position before a neutral third party, who renders a specific award. If the parties stipulate in advance, the award is binding and is enforceable in the same manner as any  contractual obligation. If the parties do not stipulate that the award is binding, the award is not binding and a request for trial de novo (generally reconsideration by the district court) may be made.

As an arbitrator, I am now available to serve as the “neutral third party” to decide parties’ disputes.

I am also a trained mediator.  Mediation differs from arbitration in that it is, according to the Judicial Branch:

A forum in which a neutral third party facilitates communication between parties to promote settlement. A mediator may not impose his or her own judgment on the issues for that of the parties.

Mediation can be a highly effective way to resolve disputes while reducing (and in some cases, eliminating) the expense and duration of protracted lawsuits.

For more information about my arbitration or mediation services, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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