The National Labor Relations Board’s (NLRB) Office of the General Counsel issued two Advice Memoranda on October 31, evaluating two at-will provisions in employee handbooks and concluding in each case that employees could not reasonably construe the provisions to restrict protected activity. Therefore, the provisions did not violate federal labor law.

The NLRB’s determination whether at-will employment disclaimers — common provisions in employee handbooks — may violate labor law represents another area in which the NLRB is recently asserting its authority. The NLRB’s attention to at-will provisions garnered attention and controversy earlier this year when an NLRB administrative law judge (ALJ) also held that an American Red Cross unit’s at-will disclaimer was unlawfully broad. Subsequently, an NLRB Regional Office issued a similar complaint against Hyatt Hotels Corp. challenging its at-will policy. See our prior client briefing regarding Red Cross and Hyatt Hotels.

The two recent advice memoranda, Case 28-CA-084365 and Case 32-CA-086799, concerned charges filed with the NLRB alleging that the handbooks at issue, distributed by Rocha Transportation, a California trucking company, and SWH Corp. d/b/a Mimi’s Café, an Arizona restaurant, defined at-will employment so broadly that employees could reasonably think they were prohibited from engaging in activity protected by the National Labor Relations Act (NLRA or Act).  

Yesterday’s advice memoranda distinguished Red Cross, finding that the Red Cross at-will statement “more clearly involved an employee’s waiver of his Section 7 rights.” In Red Cross, the ALJ held that the NLRA precluded the employer from requiring employees to sign a form stating, “I further agree that the at-will employment relationship cannot be amended, modified, or altered in any way.” According to the ALJ, the form amounted to a waiver of the right to advocate concertedly to alter the at-will status.  

Distinguishing the current matters from Red Cross, the NLRB’s advice memoranda observed that the language at issue in Mimi’s “teammate” handbook and Rocha’s driver handbook did not state that the at-will relationship was unalterable. Rather, the Rocha agreement said only that the company president — not managers or supervisors — had the authority to make an agreement for any type of employment other than at-will employment, and only in writing. Additionally, Mimi’s at-will statement provided that no company representative had the authority to enter into an agreement contrary to the employment at-will relationship. Thus, unlike the policy at issue in Red Cross, the two statements under review at the Division of Advice reaffirmed the at-will employment relationship, but neither required a personal promise from the employee.

As Board law remains unsettled and developing in this area, the Acting General Counsel has asked all Regional Offices to submit cases involving employer handbook at-will provisions to the Division of Advice for further analysis and coordination.