NLRB Questions At-Will Disclaimers In Non-Union Employer Policy Manuals

At-will employment policies have been under attack by the NLRB. Last week, in an attempt to clarify the National Labor Relations Board's (NLRB) stance regarding at-will policies, the NLRB’s Acting General Counsel issued memos addressing two employers’ at-will policies. The first policy was challenged because it stated that it could only be modified in writing by the employer’s president. The second policy was challenged because it went further and stated that “no representative of the Company has authority to enter into any agreement contrary to the foregoing ‘employment at will’ relationship.” Earlier this year, in American Red Cross Arizona Blood Services Region, an NLRB Administrative Law Judge (ALJ) found that an at-will acknowledgment form was unlawful because it stated, “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” The ALJ said that the form was “essentially a waiver” of the employee’s right to “advocate concertedly . . . to change his/her at-will status” under Section 7 of the National Labor Relations Act. In addressing the two policies cited in his memos, the General Counsel commented that while the law in this area remains “unsettled,” the two challenged at-will policies were lawful. Unlike the Red Cross policy, these two policies did not expressly require employees to refrain from seeking to change their at-will status or to agree that their at-will status cannot be changed in any way. In fact, the first policy expressly contemplated the modification of an employee’s at-will status by the employer’s president, potentially as a result of collective bargaining. Given the uptick in challenges to handbook policies before the NLRB, Employers should review their at-will policies and acknowledgment forms to ensure they cannot be interpreted so as to waive employees’ right to collectively attempt to modify their at-will employment status.