Thursday, November 1, 2012

Not so frightening Halloween Surprise from NLRB

In August, I wrote about NLRB decisions which found that certain at-will disclaimers in employee handbooks were unfair labor practices. In a Halloween surprise, the NLRB has now provided some not-frightening news for employers in the form of guidance on at-will disclaimers that do not violate the NLRA. 

The Board has now advised that the following disclaimer was lawful under the NLRA: 

Employment with [the Company] 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 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 NLRB notes that this clause explicitly indicates that the at-will relationship can be changed, so employees would not reasonably assume that they do not have a right to organize collectively to change their at-will status. Thus, says the advice memo, the disclaimer did not violate labor laws.

Another advice memo found that the following at-will disclaimer did not violate the NLRA:

The relationship between you and [the Company] 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.
This advice memo stated that “the provision does not require employees to refrain from seeking to change their at-will status or to agree that their at-will status cannot 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."

Employers should continue to look carefully at their at-will disclaimers and consider labor law risks.  We'll post again soon with some tips about how to keep at-will disclaimers from becoming a problem. The good news for now is that the NLRB has supplied some much needed clarity for employers about the type of handbook disclaimers it will find acceptable. 

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