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NLRB Not a Fan of At-Will Employment Disclaimers

By Deanne Katz, Esq. on October 23, 2012 | Last updated on March 21, 2019

A company's employment handbook sets out the requirements and expectations for employees but to avoid any confusion about employment status some contain an 'at-will disclaimer.' The disclaimer generally specifies that the handbook doesn't change an employee's status from 'at-will.'

But the NLRB isn't a big fan of certain kinds of those disclaimers and it's struck down a few that it feels violate employees' rights.

So far two disclaimers have been struck as a violation of the NLRA but both have had a similar problem. They've been excluded because they discourage collective bargaining.

Both the at-will disclaimers that the NLRB has challenged involve statements that an employee's at-will status cannot be altered with the written signature of a high-level executive. That limitation is what the NLRB has focused on, reports Inside Counsel.

Telling employees they can't alter their status without this specific approval makes it appear unlikely that collective bargaining through a union could have a positive effect on employee status.

That in turn discourages employees from joining unions, in the view of the NLRB, and that is what they object to.

Whether or not you agree with the analysis, knowing that the NLRB disapproves of these kinds of at-will disclaimers will hopefully help you steer your client in the right direction.

With this in mind take the time to review employment handbooks and other documentation commonly given to employees. It's not just disclaimers that you're looking for.

It won't hurt to review the documentation for anything that could be construed as discouraging union membership. Also avoid disclaimers or statements that make collective bargaining appear toothless. Part of the issue for the NLRB is making employees feel like union membership won't be effective.

These rulings don't mean at-will disclaimers will be the subject of greater attack by the NLRB but they also don't dispel that idea. If your client relies on those disclaimers consider finding alternate ways to clearly define employment relationships.

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