NLRB Wades Into Debate Over “At-Will” Employment Disclaimers – Again

By Eric B. Meyer

Just Google it.

The National Labor Relations Board has been drawing a lot of attention for its heightened scrutiny of at-will employment disclaimers. For example, in a case involving the American Red Cross, a Board ALJ found that the American Red Cross broke the law by having an employee handbook policy that stated, in part, “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.”

But new guidance from the NLRB’s Acting General Counsel confirms what I’ve been saying: Don’t even think about scrapping those employee handbook at-will employment disclaimers. (Maybe a small tweak may do the trick).

What at-will disclaimers are lawful

According to this press release, the Board’s Acting General Counsel has concluded that the following at-will employment disclaimers are lawful:

  1. “No manager, supervisor, or employee of [the Company] 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.”
  2. “No representative of the Company has authority to enter into any agreement contrary to the foregoing ’employment at will’ relationship.”

What distinguishes these provisions from the Red Cross language before the jump? According to the Acting General Counsel, it’s the possibility that the at-will relationship may change. Otherwise, language suggesting that the at-will relationship will last forever could chill employees from exerting their rights under the National Labor Relations Act to organize and unionize. (Many union workplaces require “cause” prior to termination).

Article Continues Below

Private employers, especially those in non-union settings — remember the Act applies to you, too — should consider modifying their at-will employment disclaimers to open the door to a future change in the at-will employment relationship.

Just make sure that door is open ever so slightly.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

Topics

Leave a Comment

Your email address will not be published. Required fields are marked *