Carefully Word At-Will Disclaimer
Choose your words wisely, lest they come back to bite you. That’s the message the National Labor Relations Board (NLRB) seems to be sending with two recent rulings its representatives made on the wording of at-will disclaimers in employee handbooks.
The NLRB is an independent federal agency responsible for safeguarding employees’ rights to organize and form unions. Additionally, it acts to prevent and remedy unfair labor practices committed by private sector employers and unions. In doing so, the NLRB investigates complaints of unfair labor practices, and its administrative law judges make decisions on those complaints.
Evidently, someone complained about the at-will disclaimer in a Hyatt Hotels employee handbook and, according to the article “NLRB’s Challenge of At-Will Language ‘a Terrible Stretch’” on www.shrm.org, an NLRB regional director found fault with the company for having an “overly broad and discriminatory acknowledgment form in its employee handbooks,” which seemed to him to violate the employees’ right to organize. Similar language was in a handbook of the American Red Cross in Arizona and an NLRB administrative law judge also told that organization that their at-will disclaimer was unlawful.
What’s the problem with the disclaimers? NLRB Acting General Counsel Lafe Solomon explained that they seemed to encourage employees to believe that nothing could change their at-will status, not even union representation, and that union organization would then be futile. Discouraging union organization is a violation of the National Labor Relations Act.
What language does the NLRB allow? The agency recently approved this disclaimer in Rocha Transportation’s handbook: “Employment with Rocha Transportation is employment at-will. Employment at-will may be terminated with or without cause and with or without notice at any time by the employee or the Company. Nothing in this Handbook or in any document or statement shall limit the right to terminate employment at-will. 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.”
Solomon concluded the Rocha disclaimer was lawful because it didn’t require employees to agree that their at-will status could never be changed or to refrain from seeking to change it.
So, a word to the wise: check your handbooks, applications, offer letters, and anything else that includes an at-will disclaimer to see if it differs greatly from the one above because this is now a potential area of concern and you don’t want to get bitten.