Does Your At-Will Disclaimer Violate the NLRA?


As appearing in the Human Resources of Central Ohio (HRACO) monthly newsletter

 

Does Your “At-Will” Employment Disclaimer Violate the NLRA?

This is becoming an unfortunate theme to my monthly column. If you haven’t noticed, I write an article highlighting something of significance that occurred at the National Labor Relations Board the previous month. When I started this column, I feared that I may run out of topics to discuss. I no longer have that fear. This month we explore the Board’s threat that at-will disclaimers in handbooks may violate the National Labor Relations Act.

Is your company handbook similar to just about every single handbook I have ever seen (or prepared for employers)? If your handbook has a provision telling employees that they are employed at-will, then yes, yours is like all the rest – at least in that respect. And you, like all the rest, may be violating the National Labor Relations Act.

At-will disclaimers generally state a worker’s employment status is at-will and can only be changed by a corporate executive. These disclaimers are intended to avoid a scenario where a manager, without authority to do so, indirectly or accidentally implies employment for a specific length of time or that an employee cannot be terminated without a certain level of scrutiny. Every non-union employer I know has an at-will clause in their handbook and many provide them in offer letters to new hires. So you all need to pay particular attention to this development.

Over the past year, the NLRB has targeted corporate policies of non-union companies and held that many common policies, some having been around for decades, now violate the National Labor Relations Act. Some of the common policies that have been deemed to suddenly violate the Act includes:

  • Certain arbitration agreements
  • Policy prohibiting employees from discussing matters currently under investigation
  • Rule requiring employees to only perform work during working hours
  • Open door policy that encourages workers to discuss matters of concern with management and reminds employees that venting to co-workers will not resolve the issue
  • Certain social media policies

If Lafe Solomon, Acting General Counsel to the National Labor Relations Board, gets his way, you can add a bullet point to the list above that says: At-will disclaimers.

According to Solomon, a clause that states an employee’s at-will status can be changed only by a corporate executive may lead an employee to believe that being represented by a union or having a collective bargaining agreement would be futile because neither of those could alter the at-will status. With this mindset, such a clausecould violate the NLRA. The Board has used this “may cause confusion” argument to invalidate other handbook policies before, and I anticipate it will do so again when given the opportunity.

What Should HRACO Members Do?

Please review your handbook policies – especially the at-will disclaimers. If they are similar to the above example, where at-will employment can only be changed by a corporate executive, you should consider modifying the policy. Unfortunately, I do not have insight into what type of at-will policy would appease the NLRB, but at a minimum, articulating that the at-will policy (or any policy in the entire handbook, for that matter) does not intend to infringe upon any rights afforded to employees by the National Labor Relations Act.


Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at
Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.

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