DeWitt Ross & Stevens: NLRB attacking routine at-will employment disclaimers

By John C. Gardner & Scott M. Paler, DeWitt Ross & Stevens S.C.

Recently, the National Labor Relations Board (“NLRB”) has started attacking routine at-will employment disclaimers in the employee handbooks of non-union employers.

At-will disclaimers are a staple of employee handbooks, informing employees that they may be terminated with or without cause, at any time, and for any lawful reason. The intent of these disclaimers is to protect employers from employees claiming they have employment contracts. But the NLRB now believes that, when worded too broadly, these policies might impermissibly chill employees’ rights to engage in union-organizing activities under the National Labor Relations Act (“NLRA”).

In February, an NLRB Administrative Law Judge (“ALJ”) ruled that an employee handbook acknowledgment form used by a chapter of the American Red Cross violated the NLRA. In particular, the ALJ determined that the following language—“I further agree that the at-will employment relationship cannot be amended, modified or altered in any way”—could be interpreted by an employee as a relinquishment of his or her right to engage in collective bargaining or other protected activity.

Shortly thereafter, the NLRB filed a complaint against Hyatt Hotels Corporation, arguing that certain provisions in its handbook were overly broad. The provisions in question required employees to acknowledge that only written statements signed by the employee and either Hyatt’s president or executive vice president could change the employee’s status from “at-will.” As a result of a settlement between the parties, the NLRB did not have the opportunity to rule on the validity of Hyatt’s disclaimers.

In light of the NLRB’s increased scrutiny of these disclaimers, employers should consult their employment counsel about the risks and benefits of changing the language in their own at-will disclaimers. For more information, contact John Gardner at [email protected] or Scott M. Paler at [email protected].