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Employment Law Post

Practical Insight on Labor and Employment Law

The US Senate Passes ENDA

Posted in Legislation, Title VII

By a 64-32 vote earlier today, the United States Senate passed a version of the Employee Non-Discrimination Act, a measure that would amend Title VII to add sexual orientation and gender identity as protected characteristics and provide employment protections for LGBT employees not previously available under federal law.  As we discussed last week, Senate Majority Leader Harry Reid promised to push this bill for a vote prior to Thanksgiving and he delivered on this pledge more than a full fortnight early.

While the Senate’s passage of ENDA is a monumental development, it appears this bill faces an uphill battle to even garner a floor vote in the House of Representatives, where Speaker John Boehner remains a staunch opponent.  However, it is clear that the nearly universal opposition for this law from GOP legislators is quickly eroding.  Not only was ENDA introduced in the Senate by a bipartisan coalition of supporters, John McCain and Orrin Hatch — two Republicans who voted against similar legislation in 1996 – voted in favor of ENDA this time.

Even if this Congress does not pass ENDA, the tide (both on Capitol Hill and outside the Beltway) is clearly shifting in favor of expanding legal rights and protections to LGBT workers.  We will continue to monitor this bill in the coming weeks and months and will report any developments.

Will Congress Finally Pass ENDA and Embrace Equal Employment Protections for LGBT Workers?

Posted in Supreme Court, Title VII

The U.S. Supreme Court’s decisions on June 26, 2013 striking down portions of the Defense of Marriage Act (U.S. v. Windsor) and California’s Proposition 8 (Hollingsworth v. Perry) were greeted with loud applause by the LGBT community and tens of millions of others who have championed marriage equality.  These decisions reinforced the notion that at least on the national level, courts, not legislatures, provided the best forum to pursue equal rights based on sexual orientation and gender identity.

The Windsor and Hollingsworth decisions were issued in the midst of a sea change in the public’s opinion regarding the legalization of same-sex marriage.  As recently as November 2010, a poll taken by CNN during mid-term elections revealed only 41 percent of voters supported same-sex marriage.  By July 2013, a Gallup poll showed that 52 percent of Americans would vote in favor of a law that would legalize such unions in all 50 states.

While the tailwinds behind efforts to expand marriage rights for gay couples have strengthened, less progress has been made in extending equal employment protections to LGBT workers.  However, this might change in the very near future – and this change will most likely spring from the legislative branch, not the judiciary.

Earlier this week Senate Majority Leader Harry Reid promised to reintroduce the Employment Non-Discrimination Act (“ENDA”) in the Senate before Thanksgiving.  If enacted, ENDA would amend Title VII to include sexual orientation and gender identity as protected characteristics alongside race, color, sex, religion and national origin.  Before now, courts have repeatedly held that sexual orientation and gender identity are not protected characteristic under Title VII and gay and transgender plaintiffs have been mostly limited to claiming gender discrimination based on “sex stereotyping”  —  disparate treatment based on an individual’s failure to look or act like someone of his or her own gender.

ENDA has been introduced in almost every Congress since 1994 but has never gained much traction aside from House approval of a watered-down version in 2007.  Senator Reid believes this is about to change and has stated he feels confident that the Senate will pass ENDA.  Even if this happens, it is entirely uncertain whether there is sufficient support in the House to cause ENDA to cross President Obama’s desk for signature.  However, given the recent momentum behind expanding gay rights, it appears it is only a matter of when, not if, ENDA or a similar bill will extend employment protections to LGBT workers.

Top Ten Ways to Tank Your Mediation

Posted in Mediation

The art of mediation–some lawyers have a gift for it right out of law school and some never seem to develop the skill.  Most of us have to work at it.  However, no matter your skill level, there are certain things that, if you are not mindful of them, will almost always blow up in your face.  Below is a list of things that are sure to tank most every mediation.

1.      Unintentionally misrepresent your client’s position

You can derail the mediation before it begins if you are not thoughtful and careful in discussing the mediation with your client and/or the other side.  For example, if the plaintiff makes an opening offer and asks your client to participate in mediation, your response is critical.  If you simply agree to attend, the plaintiff will think that his or her opening offer is “in the ballpark.”  You need to be very clear if your client is willing to participate in mediation, but is not willing to settle anywhere near the plaintiff’s opening offer, in order to set proper expectations for the mediation.  If the parties arrive at the mediation with significantly different expectations, the mediation is set up for failure.

2.      Pick the wrong mediator for your case

In that same vein, your mediation won’t be successful if you don’t pick the right mediator for the job.  Be thoughtful and strategic about who (or what) you think will be the biggest obstacle to settling the case.  If the other party seems to need persuading, listen to his or her attorney’s recommendation for a mediator to convince his or her client.  If your client is the hold-up, find the right person to talk to your client.  If the case involves a complex area of the law, make sure your mediator has that expertise.  A mediator who is successful in one case solving one type of problem, won’t always be the best choice in a different case. 

3.      Make an aggressive opening statement

I know it’s hard.  Your client is there, and it is almost impossible to resist the urge to show off your amazing advocacy skills in front of your client.  The mediator asks if you would like to make an opening statement, and clearly you would be doing everyone a disservice if you did not point out all of the problems in the case—especially to the other side.  Here’s the reality:  If you are saying it at the mediation, no one on the other side of the table is buying it.  So prepare your client ahead of time.  Let him or her know that the mediation has a higher chance of success if you do not present an aggressive argument during the opening session. 

4.      Don’t give the mediator the ammunition he or she needs

Of course, if you are not making the arguments in the opening statement, you have to arm the mediator with the information, evidence, documents and/or case law he or she needs to make those arguments for you.  Refusing to share that ammunition with the mediator or the other side out of fear of giving them “free discovery” won’t get your case settled.  Draft a mediation statement well in advance of the mediation.  Be thoughtful about evidence you will permit the mediator to share with the other side.  In particular, share those things that establish untimeliness, failure to exhaust administrative remedies, failure to mitigate damages, limitation of back pay/front pay, after acquired evidence or defenses that will defeat liability.

5.      Think that you can wait until after (and if) the mediation fails to work the case

With that in mind, you can’t arm the mediator with ammunition if you haven’t done enough work to know the pros and cons of your case.  You cannot wait to see if the mediation fails before you review (and produce) documents or talk with witnesses.  You have to know enough about the case to know your pitfalls as well as those of your opponent (and what evidence to use to point them out).

6.      Wait until the end of discovery to mediate

But that doesn’t mean that you should work the whole case first!  You cannot wait until the completion of discovery before you mediate.  By that time, both parties are so entrenched in their positions (and both sides have accumulated so much in fees and costs) that it is virtually impossible to find any middle ground.

7.      Forget to check the status of bankruptcy filings

In employment cases, a current bankruptcy filing can wreak havoc with a settlement.  You do not want to waste your time, the mediator’s time, and your client’s time and resources on a day of mediation just to find out at the last minute that you cannot settle the case because of a bankruptcy filing.  In like manner, a prior bankruptcy filing that has been discharged might give you some judicial estoppel ammunition you need (if the plaintiff knew about the employment claim and did not disclose it to the bankruptcy trustee).  So always, always, always, check the electronic bankruptcy docket before the mediation.

8.      Don’t know when to be patient and when to speed things up

You have to be patient at mediations.  The parties often have to “dance the dance” for some time in order to be ready to make real progress.  Things go slow at first.  The mediator spends a lot of time in the other room.  That’s ok.  Be patient and don’t push the process.  But once things start moving, you need to be ready for the transition.  When the mediator is ready to kick it in gear, you do not want to be advising your client to continue in $500 increments.  That is the fastest way to derail the mediation.  Stay focused on the tempo of the negotiations.

9.      Wait to discuss important nonmonetary parts of the agreement until you have a deal

If it has to be a part of the agreement, don’t wait until you have a final agreement to bring it up.  If your client won’t settle unless the current employee quits his or her job and signs a “good bye forever” clause, that issue will seriously change the value of the case.  If the offer you make must include all attorneys’ fees and costs, make sure you communicate that clearly.  You can’t wait until you have a deal to raise any such issues.  Bring up any issue that materially impacts the value of the settlement right away.  Discuss with the mediator the right time to bring up other issues such as tax withholdings, confidentiality clauses, non-disparagement clauses, and liquidated damages clauses.

10.  Show up without a draft settlement agreement

You have a deal, but now you have to go back to your office and draft an agreement.  And you are really busy and have been gone for an entire day at mediation.  So it takes you awhile to send a draft to the other side.  And the other side is really busy, because he or she has been gone for an entire day at mediation.  And they have to get back with their client and review the agreement.  Then there are questions or revisions, and they have to get together again to review it.  And then everyone gets cold feet.  Don’t let the settlement fall apart because you don’t have an agreement ready to be signed at the mediation.  Come with an electronic version that can be readily edited, printed and signed at the mediation.


Is Genesis Really a New Beginning for Rule 68 Offers of Judgment in FLSA Matters?

Posted in FLSA

When the Supreme Court recently decided Genesis Healthcare Corp. v. Symczyk, 11-1059 (U.S. Apr. 16, 2013) employment attorneys across the country immediately jumped to the conclusion that they had the Court’s stamp of approval to use Rule 68 offers of judgment to foreclose individual and collective actions under the Fair Labor Standards Act (“FLSA”).  Unfortunately, upon closer analysis of the case, Genesis does not provide such a clear path.

In Genesis, the employer served a Rule 68 offer of judgment with its answer, offering $7,500 in unpaid wages in addition to reasonable attorneys’ fees and costs to be determined by the court.  The offer stipulated that the employee had to respond within 10 days or the offer would be withdrawn.  When the employee did not respond (and thus did not accept the offer of judgment), Genesis moved to dismiss the employee’s individual and collective FLSA claims.  Even though the employee had not been paid anything pursuant to the offer of judgment, Genesis argued that because the employee had been offered complete relief, she no longer had a personal stake in the lawsuit, and thus the court lacked subject matter jurisdiction over both her claim and the collective action.  The district court agreed with Genesis (noting that no other plaintiff had yet joined the collective action) and the Third Circuit reversed.

So, when the Supreme Court sided with the district court, employers immediately thought they had a solid precedent for making such offers of judgment to foreclose not only individual FLSA cases but also collective actions.  Not so fast.  In Genesis, the employee conceded a very crucial issue at the lower court level–whether an unaccepted offer of judgment that would fully satisfy an individual’s FLSA claims moots the plaintiff’s individual claims (due to lack of subject matter jurisdiction).  The Supreme Court did not reach that issue because it was not in controversy.  And the Circuit Courts are split.  The Third, Fourth and Seventh Circuits have held that an unaccepted offer of judgment that fully satisfies plaintiff’s claims render such claims moot.  The Second and Sixth Circuits have held that it does not.  The other Circuits have not addressed it.

So the only thing that is clear from Genesis is that if an individual FLSA claim is moot, and no additional plaintiff has joined the FLSA suit, the collective claims are also moot.  Some pundits are predicting that the Court has signaled to other Circuits that they should fall in line with the Third Circuit—and find that an unaccepted offer of judgment that would fully satisfy a claim moots the individual claim.  However, that outcome remains to be seen.

The Fourth Circuit Invalidates the NLRB’s Posting Requirement While Limiting the Scope of its Rulemaking Authority

Posted in NLRB

On Friday, June 14, 2013, the National Labor Relations Board (NLRB) lost yet another challenge to its proposed rule in September 2011 requiring employers to display a poster informing employees of their rights to organize and to be free from employer interference with such rights.  As we wrote about here, the D.C. Circuit Court of Appeals enjoined the enforcement of this rule prior to its initial effective date of April 30, 2012.

In May of this year, the D.C. Circuit (opinion here) invalidated the posting rule, holding that it violated Section 8(c) of the NLRA, which permits an employer to express its opinions regarding unionization issues as long as the employer’s statements do not constitute threats of reprisals or promises of benefits to employees. The court reasoned if an employer has the right to speak regarding representative bargaining, it must have the concomitant right to be silent on the same issues, a right that would be thwarted by the required posting.

Although the D.C. Circuit invalidated the NLRB’s posting rule based on its inconsistency with Section 8(c), the majority opinion did not address a very important issue – whether the Board’s rulemaking authority permitted it to enact the rule at all.

In U.S. Chamber of Commerce v. NLRB, the Fourth Circuit panel took head-on the issue ducked by the D.C. Circuit, finding that the NLRB exceeded its rulemaking authority by enacting the posting rule.  The court initially noted that Section 6 – the NLRA provision granting rulemaking authority to the Board – permitted the Board to promulgate such rules “necessary to carry out” the provisions of the NLRA.  The court then noted that the Act established two primary duties for the Board: 1) to conduct representative elections, and 2) resolve unfair labor practice charges.  Both roles are reactive as they require affirmative action by others before the Board can act.  In contrast, the court held that proposed posting rule constituted proactive action by the Board and, therefore, the Board had exceeded its legislative mandate.

Although the concurrent cases in the D.C. and Fourth Circuits netted the same results – the invalidation of the posting rule – the Fourth Circuit’s reasoning could have a more sweeping impact on the Board and its increased use of its rulemaking powers to further its apparent agenda to make certain employees of union and non-union employers are informed of their rights under the NLRA.   The Board has not yet announced whether it intends to seek Supreme Court review of the Fourth Circuit’s decision.  We’ll keep you posted.

Is “BYOD” More Trouble Than It Is Worth?

Posted in Uncategorized

Employers are abuzz about a new acronym being discussed at the water cooler—“BYOD.”  No, it doesn’t have anything to do with parties or beverages.  It stands for “Bring Your Own Device,” and it signals the movement by employees to use their own cutting edge electronic devices at work.

It sounds like a great idea.  An employee who is tech savvy gets a new device—iPad, Smartphone, laptop—and wants to use it for work projects to be more efficient or to work remotely.  Or even to ease the pain of juggling so many different electronic devices.   So why not just hook them up to the network?  That’s what many employers are doing.  And they are doing so without thinking first and certainly, without first establishing a BYOD policy.  And thus the problem. 

Issues abound with allowing employees to use their personal electronic devices to access the employer network and perform work including:

  • Intellectual Property—Who owns the intellectual property that is created on the employee’s device?  Surprisingly, the default answer is not always the employer in these situations.
  • Privacy Issues—Both the employer and company have privacy issues in play.  If employees have sensitive corporate data stored on their personal devices, is the data safe from hackers?  What if the device is lost or stolen?  If the employer needs to access the personal device (think termination of the employee, investigations into employee misconduct, need to preserve data under electronic discover obligations, etc.) how is that accomplished without violating the privacy of the employee as to the other personal data on the device? 
  • Wage & Hour—Are hourly employees allowed to use personal devices for work?  If so, does that expose the company to off-the-clock claims (lawsuits where the employee claims he or she worked but did not record the time and thus was not paid overtime)?
  • Security—Does the employer have access to wipe the device remotely if needed if it is lost or stolen (or if the employee is terminated)?  If so, what about the employee’s personal data stored on the device (contacts, photos, etc.)?  What if the employees personal device leads to a security breach, virus or attack by a cyber terrorist?

The best policy may be to prohibit employees from BYOD and, instead, invest in company-paid electronic devices.  If the employer wants to allow BYOD, it should limit such activities to non-hourly workers and, quite clearly, must implement a BYOD policy to address the issues discussed above.  Any such policy should specifically identify the devices to which it applies, should require proper security protocol to protect company data (software, virus detection, password requirements, etc.), should provide procedures to follow within specific time frames if the device is lost or stolen, should specifically address employer ownership of intellectual property, and must eliminate any expectation of privacy with regard to the personally-owned device that is being used to access the company network.

Webinar: Preventing Workplace Violence in the U.S.: Critical Legal, Behavioral, and Operational Considerations for Employers

Posted in Uncategorized

Maynard, Cooper & Gale would like to invite you to a free 90-minute webinar entitled “Preventing Workplace Violence in the U.S.: Critical Legal, Behavioral, and Operational Considerations for Employers.” It will be held on Tuesday, April 30, from 2:00pm-3:30pm CST.

This webinar is hosted by the Employment Law Alliance, which is a legal network comprised of law firms around the world. Maynard Cooper is the only member firm from Alabama. Our membership in this network provides us with access to over 3,000 labor and employment attorneys to help us better serve our clients’ needs.

Please feel free to share this invitation. Since registration is per site, only one person needs to register if you will be in the same room listening together. If you will be in different offices or locations, each person will need to register. You will listen to the webinar and view the power point slides via your computer. Please be sure you are able to do that (instructions for downloading the meeting software will be included in your registration confirmation). A phone option will be available, but you will need to cover any related charges.

To register, please click HERE. Scroll to the “Webinars” box on the right side of your computer screen, click the webinar title to view more details or the “Register for Webinar” button.

For questions or additional information, please contact us or Linda Henderson at the Employment Law Alliance. We hope that you will take advantage of this wonderful opportunity!


Eleventh Circuit Holds that Undocumented Workers Can Recover Back Pay for FLSA Overtime and Minimum Wage Violations

Posted in 11th Circuit, FLSA, Legislation, Title VII

On Wednesday, March 6, 2013, a panel from the Eleventh Circuit Court of Appeals (covering Alabama, Georgia and Florida) held in Lamonica v. Safe Hurricane Shutters, Inc. found that undocumented – i.e. illegal – workers are not barred from recovering lost wages from their employers for violations of the overtime and minimum wage provisions of the federal Fair Labor Standards Act (“FLSA”). This holding ruling was not unprecedented, as the Eleventh Circuit upheld FLSA back pay awards to illegal workers in its 1988 decision in Patel v. Quality Inn South.   This decision is noteworthy, however, as it was reached after the United States Supreme Court’s 2002 decision in Hoffman Plastic Compounds v. NLRB, a case addressing back pay remedies for illegal workers under the National Labor Relations Act (“NLRA”).   In Hoffman, the Court held that although undocumented workers fall under the definition of “employee” under the NLRA, the remedies available to undocumented workers, including back pay, could be limited because of their status.  The Court found that the policy interests underlying the Immigration Reform and Control Act (“IRCA”) gave courts the authority to reject the award of back pay to illegal workers who were terminated in violation of the NLRA.

The impact of the Hoffman decision extended beyond NLRA cases.  Indeed, in the wake of Hoffman, the EEOC determined that it could no longer seek back pay (and reinstatement) awards for undocumented workers with claims under Title VII and federal discrimination statutes.  The EEOC also rescinded its 1999 guidance titled “Remedies Available to Undocumented Workers Under Federal Employment Discrimination Laws” because it relied on pre-Hoffman NLRA cases supporting the rights of undocumented workers to seek back pay damages.

Any argument that the Hoffman decision put an end to back pay awards for FLSA violations against illegal workers was resoundingly dismissed by the Eleventh Circuit in Lamonica.  Although the Lamonica court agreed that the definitions of “employee” under the FLSA and NLRA are generally the same, the court pointed out that the NLRA and FLSA are markedly different in terms of the nature of the back pay remedies available.  The key distinction is that back pay awards under the NLRA are for work not performed by the employee because of statutory violations whereas back pay in FLSA cases is for work already performed.   According to Hoffman, awarding back pay to an undocumented worker for being deprived of a job in violation of the NLRA would run undermine IRCA, the central purpose of which is to combat the employment of illegal aliens.  In contrast, the back pay remedy under the FLSA is meant to compensate employees for work already done, not work they were not permitted to do.  Therefore, reasoned the Lamonica court, compensating undocumented workers for work already (yet illegally) performed is not inconsistent with the purposes of IRCA.

The Eleventh Circuit’s reasoning in Lamonica is not bulletproof.  It seems that rewarding illegal workers with statutorily-enforced guarantees of minimum wages and overtime creates an incentive for undocumented individuals to seek employment —  if they are able to secure employment, they know they are guaranteed to be paid for the work they perform.  Would not such an incentive run afoul of the purposes of IRCA?  Regardless of the soundness of the Lamonica court’s logic, employers should know that at least for now, they will not be able to avoid liability under the FLSA simply because the workers seeking to enforce their rights were never authorized to work in the first place.

Over time, the use (mandated or otherwise) of E-Verify and other methods of checking the approved status of applicants should reduce the number of illegal workers who might seek to pursue the FLSA back pay rights.  In the meantime, however, employers in Florida, Georgia and Alabama should be wary that their potential exposure from hiring undocumented workers is not limited to the civil and criminal penalties provided under IRCA.

A Year in Review: Key U.S. Labor and Employment Law Developments in 2012 and What to Expect in 2013

Posted in Uncategorized

Maynard, Cooper & Gale would like to invite you to a free 90-minute webinar entitled “A Year in Review: Key U.S. Labor and Employment Law Developments in 2012 and What to Expect in 2013.”  It will be held on Wednesday, January 23, from 2:00pm-3:30pm CST.  

This webinar is hosted by the Employment Law Alliance, which is a legal network comprised of law firms around the world.  Maynard Cooper is the only member firm from Alabama.  Our membership in this network provides us with access to over 3,000 labor and employment attorneys to help us better serve our clients’ needs.

Please feel free to share this invitation.  Since registration is per site, only one person needs to register if you will be in the same room listening together.  If you will be in different offices or locations, each person will need to register.  You will listen to the webinar and view the power point slides via your computer.  Please be sure you are able to do that (instructions for downloading the meeting software will be included in your registration confirmation).  A phone option will be available, but you will need to cover any related charges.

To register, please click HERE.  Scroll to the “Webinars” box on the right side of your computer screen, click the webinar title to view more details or the “Register for Webinar” button.

For questions or additional information, please contact us or Linda Henderson at the Employment Law Alliance.   We hope that you will take advantage of this wonderful opportunity!

The NLRB Clarifies (and Perhaps Softens) Its Position Regarding At-Will Employment Disclaimers

Posted in NLRB

To borrow from Mark Twain, the reports of the complete demise of employment-at-will clauses were greatly exaggerated.  As we reported here, the NLRB’s actions earlier this year called into question whether an employer could have a strong at-will employment provision in its handbook without illegally trampling employee Section 7 rights.  First, in February, an ALJ shot down the following acknowledgment in an American Red Cross handbook:  “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.”   The ALJ found that this acknowledgement violated Section 7 as it could impermissibly suggest to employees that they could not organize and change the nature of their at-will employment through collective bargaining.  In June, Lafe Solomon, Acting General Counsel for the Board, reiterated in a bar association meeting that forcing employees to acknowledge that their employment status was at-will and could not be changed without the agreement of a high-ranking company official might violate the NLRA.

The American Red Cross decision and Mr. Solomon’s comments led to a justifiable concern by many employers and their advocates that most at-will disclaimers in employment handbooks or policies could be found to illegally chill Section 7 rights.

Late last month, however, NLRA Associate General Counsel Barry Kearney issued two advice memoranda that appear to resurrect the viability of at least some at-will disclaimers.  First, Mr. Kearney found that the following at-will clause used by Rocha Transportation could not be reasonably interpreted to restrict employees’ rights to change their at-will status through collective bargaining or otherwise:

Employment with Rocha Transportation is employment at-will.  Employment at-will may be terminated with or without cause and with or without notice at any time by the employee or the Company.  Nothing in this Handbook or in any document or statement shall limit the right to terminate employment at-will. No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.

Next, Mr. Kearney found that a similar provision in Mimi’s Café’s employee handbook did not violate employees’ Section 7 rights:


The relationship between you and Mimi’s Cafe is referred to as “employment at will.” This means that your employment can be terminated at any time for any reason, with or without cause, with or without notice, by you or the Company. No representative of the Company has authority to enter into any agreement contrary to the foregoing “employment at will” relationship. Nothing contained in this handbook creates an express or implied contract of employment.

In both memoranda, Mr. Kearney noted that nothing in the challenged provisions explicitly forbade employee from seeking to change their at-will status.  Instead, the clauses simply reminded employees of whom, if anyone, could modify their at-will relationship with their employers.

Kearney also attempted to distinguish the at-will clauses used by Roche and Mimi’s Café from the offending American Red Cross handbook acknowledgement  —  “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.”   Kearney found that the use of the personal pronoun “I” in this language made it more akin to an affirmative agreement by employees that they would not attempt to change their at-will employment relationship.  As such, it “more clearly” constituted a forced waiver of employees’ Section 7 rights.  In contrast, the Roche and Mimi’s Café provisions were more akin to reminders of the companies’ existing at-will policies.

Ultimately, Kearney correctly cautioned that “this area of the law remains unsettled.”  Indeed, the rather narrow distinction he attempts to make between the American Red Cross language and that of the two employers at issue demonstrates that the difference between an acceptable at-will provision and one that impermissibly impedes Section 7 rights can be razor-thin. However, based on Kearney’s guidance, employers can at least feel comfortable using the language contained in the policies used by Roche and Mimi’s Café.  At a minimum, any at-will employment policy provisions stated in the first person should be modified to avoid potential scrutiny from the NLRB.

We will keep you posted as we receive additional guidance on this issue from the Board and/or the courts.  Stay tuned.