The NLRB recently released a memo that provides clarification
about the types of at-will employment disclaimers businesses can use in their
employee handbooks. Recent NLRB decisions had made employers wary of including
at-will employment language that could be viewed by employees as prohibiting conduct
protected under the NLRA. These memos
seem to expand the scope of what is acceptable by giving the green light to at-will
language used in two employee handbooks.
An employer violates the NLRA by having work rules or
policies that prohibit union or concerted employee activities, such as joining
a union or discussing terms and conditions of employment with co-workers (the
crux of the issue in the Facebook-firing case we posted about here). Language
may also violate the NLRA if it makes employees think that such conduct is
prohibited by the terms of the employment contract.
The NLRB memos analyzed two cases. In the first, a
California trucking company had an employee handbook with broad language
describing how employees work only on an “at-will” basis, and that they could
be subject to termination at any time. In the second case, an Arizona
restaurant had a “Teammate Handbook” with language limiting employment to “at-will”
only. However, in both cases the NLRB found the handbook acceptable, with the
key being language allowing for the possibility that the employment
relationship could be changed in the future. This language, according to the
NLRB, makes it so that employees do not feel that NLRA-protected activities are
In general, the NLRB is worried that overbroad at-will
employment language will have a chilling effect on employees entering into protected
activities such as selecting union representatives. Personally, I am not sure if
an employee, reading over a handbook quickly, would really think that
NLRA-protected activity is allowable within the employment relationship. It
seems as if the at-will language is pretty severe and leaves little wiggle room.
Overall, it looks as if the NLRB is backing off from its recent harsh stance on
at-will clauses to allow businesses some flexibility when it comes to crafting wording
in employee handbooks.