In two advice memoranda, the NLRB Office of General Counsel opined that two standard at-will disclaimers did not violate federal law. In Rocha Transportation, the at-will statement provided that: "No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement … for employment other than at-will. Only the president of the Company has the authority to make any such agreement and only in writing." Mimi's Café involved a similar policy: "No representative of the Company has authority to enter in any agreement contrary to the foregoing ‘employment at will' relationship." In Rocha, the NLRB concluded that the provision was lawful as it did not require employees to refrain from seeking to change their at-will status nor did it require employees to agree that their at-will status could never change. Indeed, the provision explicitly permitted the president to modify the at-will relationship (such as through a collective bargaining agreement with a union). Likewise, the Mimi's Café policy simply highlighted that employer representatives were not authorized to modify an employee's at-will status. The provision did not restrict the employees' rights to select a collective-bargaining representative. The NLRB distinguished a highly publicized recent decision by an NLRB ALJ in American Red Cross Arizona. There, the at-will policy stated that "the at-will employment relationship cannot be amended, modified or altered in any way." According to the NLRB, the broad language in Red Cross "clearly involved" an impermissible waiver of employee rights under the NLRA
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NLRB upholds legality of employee handbook at-will disclaimers
USA November 13 2012
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