Wednesday, November 7, 2012

Tips for Ensuring At-Will Disclaimers are At Their Best

In follow-up to my colleague Abigail Crouse’s blog post last week about the unsettled law regarding at-will disclaimers, this week’s post will include tips on drafting at-will disclaimers that do not violate the NLRA.  For background, here is the NLRB’s advice on several specific at-will disclaimers.

“I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.”
“No representative of the Company has authority to enter into any agreement contrary to the foregoing employment at will’ relationship.”
“No manager, supervisor, or employee of Rocha Transportation has any authority to enter into any 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.”
NLRB Guidance
Unlawful under NLRA § 8(a)(1)
Lawful under NLRA § 8(a)(1)
Lawful under NLRA § 8(a)(1)

Although the NLRB admits that “the law in this area remains unsettled,” the following tips can help ensure that your at-will disclaimer could not reasonably be construed to restrict your employees’ collective bargaining rights.
1.     At-will disclaimers should not indicate that an employee can never change her at-will employment.
2.     At-will disclaimers should not require employees to refrain from seeking to change their a-will status.
3.     At-will disclaimers should indicate that the President (or applicable administrator) has the authority to change the employment agreement.
4.     At-will disclaimers should reflect the truth — make sure they accurately convey which supervisor may modify the at-will employment agreement.
5.     In an Acknowledgement Form, employees should not be asked to agree that their employment agreement cannot be changed in any way.
All employers, not just unionized employers, should continue to review their at-will disclaimers and consider potential labor law risks.  While the recent flurry of advice memos has provided some much-needed guidance to employers, the realm of at-will disclaimers is still in flux and employers should continue to keep updated on the latest NLRB guidance.

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