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‘At-will’ disclaimers in employee handbooks could be problematic

  • Published Thursday, August 30, 2012, at 7:10 a.m.

Employee handbooks are often invaluable tools for employers.

They allow companies to outline their expectations and policies, creating a solid reference for employees and a convenient communication tool. But most employers have also heard that an employee handbook has the potential to be seen as a contract of employment, and many have taken steps to ensure that is not the case.

A common best practice is to include a disclaimer to indicate that nothing within the handbook is meant to be construed as a contract of employment and/or that the handbook does not negate the “at-will” relationship between employer and employee (either party can discontinue the relationship at any time).

However, recent activity by the National Labor Relations Board indicates that this kind of at-will disclaimer might be problematic.

The NLRB, which enforces the National Labor Relations Act, has expressed concern that certain at-will disclaimers could be interpreted to discourage employees from joining a union, since joining a union (and being covered by a collective bargaining agreement) may change an individual’s status as an at-will employee.

In two different cases, the NLRB ruled that two separate companies’ at-will statements were “overbroad,” and were therefore a violation of the NLRA, which gives employees the right to form or join a union. A few of the statements with which the NLRB took issue included:

“I agree that the at-will employment relationship cannot be amended, modified or altered in any way.”

“I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and [specific company officers].”

“I understand my employment is ‘at will.’ ”

The third (and simplest) of these statements is likely found (or very closely approximated) in many employer handbooks. Worth noting is that all of the statements in question were not simply included within the companies’ handbooks, but on separate employee handbook acknowledgement forms that employees were to sign.

The companies whose policies were in question agreed to remove the identified statement from their handbook acknowledgement forms and add language specifically outlining employees’ right to organize under the NLRA.

At this point, it’s not clear whether the NLRB would take issue with at-will disclaimers within the pages of employee handbooks or just those that are part of employee acknowledgement statements.

Nothing in the NLRA requires employers to specifically inform employees of their rights under the law. However, doing so in an employee handbook may be one way to mitigate the risks of what the NLRB has identified as its next big enforcement focus. It may still be necessary for employers to consult legal counsel to determine the risk posed by their handbooks’ at-will statements.

Katie Loehrke is a human resources subject matter expert and editor with J. J. Keller & Associates, Inc., a compliance resource firm.

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