A few months ago, we reported that the National Labor Relations Board (“NLRB”) was taking aim at at-will disclaimers commonly found in employer handbooks. In one case, an NLRB Administrative law Judge determined that certain at-will handbook language violated the National Labor Relations Act (“NLRA”), including the following employee acknowledgment: “I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me.” The problem with this acknowledgment, according to NLRB counsel, was that employees would think union-organizing efforts would be futile because there was no way to change their at-will status, even via union organization.
Fortunately, the NLRB appears to be pulling back on this radical line of attack, no doubt due to the uproar it cause in the labor and employment community. The Board recently issued Advice Memoranda in two cases where similar at-will disclaimers were reviewed, and in both cases, the Board determined that the language did not violate the NLRA.
In the first case, the following language was scrutinized: “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.” The Board found that this “commonplace” language was permissible. Employees would not reasonably read this language and think that altering their at-will status was impossible.
The second case had similar language prohibiting employer representatives from entering agreements with employees to change their at-will status. Again, the Board found that this language passed muster because it did not require employees to (1) refrain from seeking to change their at-will status or (2) agree that their at-will status could not be changed in any way. “Instead, the provision simply highlights the Employer’s policy that its own representatives are not authorized to modify an employee’s at-will status.”
It’s difficult to reconcile these decisions. In the earlier case, the Board clearly took issue with the employer’s use of at-will disclaimer language. It appears that the only major difference in that case was the employer’s use of the pronoun “I” in the at-will acknowledgment language. Apparently, the Board considered this to be waiver-type language. The Board had problems with the concept that employees were waiving their right to change their at-will status. In the latter cases, this waiver-type language was not used.
While at-will disclaimers appear relatively safe (for the moment), it’s important to be sure that your handbooks are up-to-date with the latest changes in labor and employment law and to make sure your at-will disclaimer language could not be construed as a waiver of an employee’s right to organize.