NLRB Provides At-Will Employment Guidance

On October 31, 2012, the National Labor Review Board's (NLRB) Acting General Counsel issued two advice memos discussing whether at-will employment disclaimers violate the National Labor Relations Act. An employer violates Section 8(a)(1) of the Act if it has a policy that would chill employees in the exercise of their Section 7 rights to collectively bargain or join a labor organization. The NLRB recently found that an Arizona Region American Red Cross disclaimer was unlawfully broad because it did not allow the employee to change the at-will employment relationship. However, the NLRB distinguished the Red Cross disclaimer from the disclaimers submitted for review by Rocha Transportation and Mimi's Café. The NLRB Acting General Counsel concluded that Rocha's policy simply prohibits the employer's own representatives from entering into employment agreements that provide for a relationship other than at-will employment; thus, it did not restrict the employees' Section 7 rights. Similarly, the General Counsel believed Mimi's policy was lawful because it only restricts the employer's, not the employee's, ability to modify the at-will status. However, the NLRB Acting General Counsel did close both memos by reiterating that the law in this area remains unsettled and that it will continue to review employee handbook provisions that restrict the future modification of an employee's at-will status.

For more information about this and other employment matters, please contact:  Manesh K. Rath (+1 202.434.4182, rath@khlaw.com), or Jacquelyn L. Thompson at (+1 202.434.4209, thompsonj@khlaw.com).