Almost every nonunion company’s employee handbook has the standard clause: employment is at-will. This indisputably is a permissible term of employment, right? The answer to that question depends on how the policy is phrased. According to recent pronouncements from the NLRB, if a “reasonable employee” could read such a policy as making unionization futile, then it is an illegal term of employment under the NLRA. So, how should you craft your at-will disclaimer to withstand such a legal challenge?
Do not promulgate an at-will disclaimer in which employees agree or warrant that their at-will status cannot be amended, modified, or altered in any way. According to an Administrative Law Judge, the disclaimer essentially was a waiver of the employees’ Section 7 right to “advocate concertedly” to change their at-will status. In the case before the ALJ, although the policy did not expressly target protected concerted activity, nor was it promulgated in response to a union drive, a “reasonable employee” could read the policy this way so it violated the law.
Do make clear that the employee is at-will but that at-will status is subject to modification by certain designated officials, and then only in a signed writing. The NLRB Division of Advice rejected challenges to two at-will disclaimers because, with this language, “reasonable employees” would understand that their status could change through a collective bargaining agreement signed by a designated company official, such as the president.
The NLRB General Counsel’s office has stated that nonunion employee handbooks, including at-will disclaimers, will be scrutinized for labor law violations when claims are filed. As our prior blog posts have explained, many standard employment policies are being challenged. Knowing what a company can say – and how to say it – is key to avoiding such challenges, or ending up on the winning end.