As previously noted here, earlier this summer, the NLRB took a position that commonly used at-will employment disclaimers could be a violation of the National Labor Relations Act (NLRA). Yesterday, the Board’s acting general counsel issued advice memoranda on two cases providing much needed guidance after the decisions this summer.
Specifically, the NLRB Office of the General Counsel found that Rocha Transportation’s [pdf] at-will disclaimer found in its employee handbook was valid. The handbook specifically provided that:
“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.”
The General Counsel’s office noted that the policy does not explicitly restrict the employee’s rights under the NLRA. In fact, the provision does not 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.” Instead Rocha Transportation’s provision simply restricts who can enter into such agreement on behalf of the company. The Office distinguished this case from its decisions earlier this summer, noting that in American Red Cross, the employer required the employee to affirmatively agree that the “at-will employment relationship cannot be amended, modified, or altered in any way.”
Similarly, in guidance provided on Mimi’s Cafe [pdf], the Office of General Counsel found that the employer’s policy was lawful. Like Rocha Transportation’s policy, Mimi’s Cafe does not require employees to affirmatively agree to never change their employment status. However, unlike Rocha Transportation’s policy which provides that the company can alter the relationship by written agreement of the President, Mimi’s Cafe provides that “[n]o representative of the Company has authority to enter into any agreement contrary to the foregoing ‘employment at‑will’ relationship.” Although the language emphatically represents that the Company does not enter into agreements contrary to employment at will, the Office of the General Counsel noted that “the provision does not 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.” Thus, the Office found no violation of the NLRA.
So what’s the difference between these and the disclaimer earlier this summer in American Red Cross? Unlike the American Red Cross, Rocha Transportation and Mimi’s Cafe did not require employees to waive any rights. Instead, the focus was on the employer’s ability.
The memoranda are good news for employers as they confirm that employers can continue inclusion of at-will employment disclaimers in their handbooks. However, employers should review their at-will disclaimer language to ensure that the language does not include an affirmative, personal agreement on the part of the employee. Instead, the language should focus on the employer’s position and authority to modify the at-will nature of employment.