Labor: NLRB issues new guidance on at-will disclaimers

Language that keeps employees from engaging in concerted activity to change an at-will relationship is unlawful

Acting General Counsel of the National Labor Relations Board (NLRB), Lafe Solomon, recently issued new guidance regarding at-will disclaimers in employee handbooks. The NLRB’s Division of Advice considered at-will employment clauses in two employee handbooks and found both lawful under the National Labor Relations Act (NLRA). The memoranda issued containing these decisions constitute important guidance for employers to note and consider when creating and revising employee handbooks.

The Division of Advice issued two memoranda, each considering and finding lawful a different at-will disclaimer. The division reviewed the disclaimers to determine whether an employee could reasonably construe the language to prohibit NLRA-protected union or concerted activity, such as joining a union or discussing terms and conditions of employment with co-workers.

In one, Rocha Transportation, the NLRB considered the following language in the disclaimer:

“No manager, supervisor, or employee of Rocha Transportation 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.”

Because the disclaimer explicitly contemplates that the at-will relationship can be changed, the division determined that employees would not reasonably construe the language as interfering with their rights under the NLRA. In other words, the language would not indicate to employees that they could not engage in concerted activity to change their at-will relationship. As such, the NLRB found the disclaimer lawful.

In the second case, Mimi’s Café, the board considered the following language:

“No representative of the Company has the authority to enter into any agreement contrary to the foregoing ‘employment at will’ relationship.”

It found this language lawful as well because it did not require employees to agree that the employment relationship cannot be changed in any way. Instead, it merely provides that representatives of the employer are not authorized to change it.

The Mimi’s Café memorandum clarifies an opinion by an NLRB administrative law judge (ALJ) in a prior Region 28 case against the American Red Cross. In that case, the ALJ considered language that stated that the at-will employment relationship could not change absent a signature of both the employee and either the executive vice president/president or the chief operating officer of the Red Cross. The ALJ found this language to be in violation of the NLRA, as it essentially constituted a waiver of the employees’ rights to engage in the concerted activity of changing their employment status.

Importantly, an NLRB press release discussing the division’s memoranda notes that Solomon is “asking all Regional Offices to submit cases involving employer handbook at-will provisions to the Division of Advice for further analysis and coordination.” This signals that the NLRB may be placing focus on this issue. Employers are encouraged to review their employee handbooks and consider any at-will employment disclaimers in light of this new guidance.

Contributing Author

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John Kuenstler

John F. Kuenstler is a partner in the Chicago office of Barnes & Thornburg LLP and a member of the Labor and Employment Department. Mr....

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