NLRB breathes new life into your "at-will" employment disclaimers

November 1, 2012
By Eric B. Meyer on November 1, 2012 7:00 AM | | Comments

nlrb.jpgJust 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).

More after the jump...

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But first, before we get to the NLRB discussion, I owe y'all an answer to yesterday's "you be the judge" post. The question was whether the employer could enforce a general release against a former employee who signed and then decided to pursue discrimination claims. The answer is "no." The case is Monk v. Hirsch Industries, LLC (and the analysis begins on page 5 of the opinion).

And, now, back to Board business.

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).

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.