Recent NLRB actions on at-will disclaimers have left employers perplexed about their ability to use these routine HR disclaimers. However, a guidance issued this week by Acting General Counsel Lafe Solomon on two opinions from the Division of Advice actually clarifies the NLRB’s position on how employers can use these disclaimers and standard at-will language in handbooks.
In one case, Rocha Transportation, the NLRB’s Division of Advice issued a memorandum declaring the following language lawful: “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.” It’s lawful because the clause makes it clear that the at-will relationship can be changed. Therefore, an employee could not reasonably conclude it was intended to interfere with section 7 rights under the NLRA.
Likewise, in Mimi’s Café, the Division of Advice also approved language that states: “No representative of the Company has authority to enter into any agreement contrary to the foregoing “employment at will” relationship.” This language is lawful, according to the memorandum, because it did not require employees to agree that the employment relationship cannot be changed in any way; rather it merely explained that the employer’s representatives are not authorized to change it.
In concluding that, the opinion offered in Mimi’s Café clarifies an ALJ’s opinion in a prior Region 28 case against the American Red Cross. In that case, the ALJ found a violation of Section 7 of the NLRA in acknowledgement form language that stated that the at-will employment relationship could not change without the signature of both the employee and either the executive VP/president or chief operating officer of the Red Cross. That language, according to the ALJ, essentially constituted a waiver by employees of their right to engage in concerted activities to change their at-will employment status.
Significantly, the Acting General Counsel has now instructed the Regions to submit cases involving employer handbook at-will provisions to the Division of Advice for further analysis and coordination.