In an apparent victory for employers, the NLRB’s General Counsel (“GC”) issued a pair of Advice Memoranda upholding handbook employment-at-will disclaimers comparable to provisions found unlawful several months ago by the same GC. In the Memos, found here and here, the GC concludes that the following disclaimers did not explicitly restrict employees’ protected activities and were not in response to union or other NLRA-protected activity:
- AT-WILL EMPLOYMENT
The relationship between you and Mimi’s Cafe is referred to as “employment at will.” This means that your employment can be terminated at any time for any reason, with or without cause, with or without notice, by you or the Company. No representative of the Company has authority to enter into any agreement contrary to the foregoing “employment at will” relationship. Nothing contained in this handbook creates an express or implied contract of employment.
- 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. [Emphasis in original.]
The Rocha Transportation Advice Memo in particular seemingly contradicts the GC’s February 2012 decision to issue a complaint against Hyatt Hotels for requiring its employees to acknowledge that their at-will employment status could be altered only by a writing signed by management. The Hyatt case later settled, before an Administrative Law Judge or the Board issued a ruling on the issue.
In his Advice Memo, the GC cited a 1965 federal court case recognizing that “it is not the purpose of the [NLRA] to give the Board any control whatsoever over an employer’s policies, including his policies concerning tenure of employment, and that an employer may hire and fire at will for any reason whatsoever, or for no reason, so long as the motivation is not violative of the [NLRA].” NLRB v. Ace Comb Co., 342 F.2d 841, 847 (8th Cir. 1965). Hopefully, the GC will heed his own advice and reverse his recent labeling of at-will disclaimers and other longstanding employer personnel policies as unlawful. In the meantime, however, employers should to mirror the Mimi and Rocha “At-Will Disclaimers” found lawful by the GC.