If you are a non-union employer, you likely have an
employee handbook that sets forth the policies and procedures that guide your
relationship with your employees. And, if you have an employee handbook, it
likely contains a disclaimer stating that employees are at-will, that
employees can be fired at any time for any reason, and that nothing in the
handbook alters that at-will status. Indeed, employers commonly deploy these
disclaimers to avoid claims by employees that the handbook creates a binding
and enforceable contract.
Consider the following three at-will disclaimers, taken
from real, live employee handbooks:
What's the difference between these three policies?
According to the February 1, 2012, opinion of a National Labor Relations Board Administrative Law
Judge, #1 is an illegal and overly broad restraint on the right of
employees to engage in protected concerted activity. According to two advice
memoranda published yesterday by NLRB Acting General Counsel Lafe Solomon, #2 and #3 pass muster and are not illegal.
What's the difference? According to Mr. Solomon, the
distinction lies in the use of the personal pronoun, "I."
The ALJ found that the signing of the acknowledgement
form, whereby the employee-through the use of the personal pronoun
"I"-specifically agreed that the at-will agreement could not be changed in any
way, was "essentially a waiver" of the employee's right "to advocate concertedly
... to change his/her at-will status." Thus, the provision in American Red
Cross more clearly involved an employee's waiver of his Section 7 rights
than the handbook provision here.
By comparison, the Mimi's Cafe and Rocha Transportation
disclaimers merely serve to reinforce the unambiguously-stated purpose of the
employers' at-will policies, and do not require employees individually to agree
never to alter their at-will status.
These distinctions are nuanced, and the NLRB recognizes
their unsettled nature. From the NLRB's website:
Because Board law in this area remains unsettled, the
Acting General Counsel is asking all Regional Offices to submit cases involving
employer handbook at-will provisions to the Division of Advice for further
analysis and coordination.
It is refreshing (surprising? relieving?) to see that the
NLRB's Office of General Counsel is backing off the position that any at-will
disclaimer violates the NLRA, and is willing to evaluate them on a case-by-case
For now, you should take a look at your handbook
disclaimers and consider scrubbing them of personal pronouns. Instead, consider
using the examples from either Mimi's Cafe or Rocha Transportation as a
Of course, the validity of that template to avoid a
binding contract under state law could vary from state to state. For this
reason, you are best served running any disclaimer by your employment counsel
before rolling it out to your employees.
the Ohio Employer's Law Blog for more practical employment law information.
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