An administrative law judge with the National Labor Relations Board has recently concluded that overly broad "employment-at-will" disclaimers contained in employee handbooks have the effect of chilling or interfering with employees' exercise of their rights to engage in protected concerted activity.
For decades, employers have included at-will disclaimers in their employee handbooks to avoid creating implied contracts of employment. The disclaimers state that employment is "at will" and may be terminated at any time and for any reason that does not violate the law or public policy.
But now an administrative law judge with the NLRB has held that an employer violated the National Labor Relations Act by maintaining an overly broad at-will disclaimer. The judge found the following language to be unlawful: "I further agree that the at-will employment relationship cannot be amended, modified or altered in any way."
The judge concluded that this acknowledgement restricted employees' rights to engage in protected concerted activity by discouraging employees from concertedly advocating a change to their at-will status. The ALJ concluded that an employee would assume that his or her at-will status could not be changed even through collective bargaining, and, therefore, that the employee might be deterred from engaging in collective action by voting in a union or collective bargaining.
An ALJ decision is the first step in a long NLRB process, and it is possible that this decision will be reversed at some point in the future. However, to be safe, retail employers should review their employment-at-will policies, as well as similar disclaimers in employment applications and offer letters. As most retailers know by now, the NLRB is scrutinizing employers' social media policies, as well.