NLRB CLARIFIES ITS POSITION ON EMPLOYMENT AT-WILL EMPLOYMENT POLICIES

Written on May 16, 2016.

Employers have long been warned that they must include at-will employment language in their employment policies, in order to preclude an employee from claiming that the employer’s employee handbook or other personnel policies constituted an enforceable contract. These provisions are often written by lawyers and referred to as “disclaimers.” During the last year, the National Labor Relations Board (NLRB) raised serious issues about the legality of certain employer disclaimers.

In early 2012, an NLRB Administrative Law Judge ruled that a written, at-will employment policy that employees were required to sign violated the Labor Act because it constituted an agreement by the employees never to act in concert with one another to change the at-will relationship. The particular language stated: “I further agree that the at-will employment relationship cannot be amended, modified, or altered in any way.” American Red Cross Arizona Blood Services Region, Cas. 28-CA-23443. Because of this decision and related complaints from the NLRB, employers began to worry that their most sacred management rights provision is now being claimed by the NLRB to be illegal.

Fortunately, the NLRB General Counsel subsequently issued two Advice Memoranda (Case 32-CA-086799 and Case 28-CA-084365) explaining its position and indicating that some types of disclaimers were indeed lawful. One of the disclaimers referring to at-will employment stated as follows:

“Employment with [the Employer] 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 [the employer] has any authority to enter into an agreement of 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.”

The Advice Memos indicated that the at-will language was not written in a way that requires employees to waive their rights. The memoranda confirmed that there really is no inherent conflict between the employment at-will doctrine and an employee’s right to engage in collective bargaining.

Editor’s Note: This issue illustrates that employment disclaimers, including at-will employment policies, need to be prepared or at least reviewed by an attorney specializing in labor and employment law. In addition to at-will employment language, most disclaimers include other issues including the issue of whether the policy is a contract and the employer’s right to modify such terms in the future.