Remember earlier this year when the NLRB was hinting that certain at-will disclaimers (you know, the type of language in offer letters that says that the employee is at-will and can be fired for any reason or no reason at all) might be illegal under a new reading of applicable labor law?
The issue for the NLRB was that it viewed some at-will disclaimers as suggesting that employees who asserted their rights under the NLRA might not get what they want. In other words, even if employees wanted to form a union, the NLRB was concerned that the disclaimers might suggest that it was futile to do so based on the at-will disclaimers.
Frankly, it seemed an overreach by the NLRB.
In a pair of advice memos issued a few weeks ago, the NLRB seemed to back off of its position somewhat by blessing two types of at-will disclaimers used by employers. The issue is by no means set in stone, but the basic parameters of the discussion are starting to take shape.
What language passed muster under the most recent pair of memos?
- “No representative of the Company has authority to enter into any agreement contrary to the foregoing “employment at will” relationship.” (As noted by the Minnesota Labor & Employment Law Blog, the NLRB ruled the language was not overly broad, as it did not “… require employees to agree that the employment relationship cannot be changed in any way, but merely highlights that the employer’s representatives are not authorized to change it.”)
- “No manager, supervisor, or employee of [the Company] 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.” (This provision made it clear that the at-will relationship is not entirely set in stone and could be modified by the president.)
Contrast this with language found objectionable in an ALJ decision earlier this year where the employer had a disclaimer that forced the employee to agree “that the at-will employment relationship cannot be amended, modified or altered in any way.” That seemed to be too strong of a disclaimer.
What’s the takeaway for employers? First, this is an area still in flux. The exact parameters of what is going to be acceptable are still being fleshed out by the NLRB (not to mention, the court cases that will inevitably follow). Arguably, the NLRB is still overreaching here and it will be up to the courts to decide whether language, such as that used in the ALJ case, is really objectionable after all.
To be extra cautious, consider adding some language in your disclaimer that the at-will status can only be modified by something in writing from the President. That would seem to satisfy the NLRB (for now). In any case, take these cases as an opportunity to review your at-will disclaimers.
For more on this subject, there are several articles to recommend from Employment Law Daily, Labor Relations Today, Vorys on Labor, Labor Relations Counsel, Labor Relations Update, The Employer Handbook, and the Ohio Employer’s Law Blog.