In a move that signals a trend to employers, the Acting General Counsel (“AGC”) of the National Labor Relations Board (“NLRB” or “Board”) recently claimed in two unrelated cases that allegedly overly broad “employment-at-will” disclaimers contained in employee handbooks have the effect of chilling or interfering with employees' exercise of their right under the National Labor Relations Act (“Act”) to engage in protected concerted activity. As we previously discussed in “Helpful Guidance Summarizing the National Labor Relations Board's Position on Social Media Issues: Two Reports and One Decision” and “NLRB Acting General Counsel Issues Follow-Up Report on Social Media Cases,” both the AGC and the Board have focused significant attention on employers’ social media policies. Similar to the employment at-will disclaimer cases discussed below, a principal issue of the social media cases has been whether such policies interfere with employees’ rights to engage in protected concerted activities under the Act when such policies are overly broad. Importantly, and as we have reported in the past, the Board’s pronouncements affect non-unionized employers as well as employers with unions, since the Act applies to almost all private sector employers—not only those whose employees are represented by unions.

Employment-at-will disclaimers and acknowledgments are commonly incorporated into employee handbooks. Such statements are frequently included in employee offer letters and applications for employment as well. To protect against claims of implied employment contracts based on provisions incorporated into these employer documents, many employers include statements that define the employment-at-will relationship between an employee and the employer. The employment at-will statement usually provides that an employee’s employment is “at will” and, as such, can be terminated by either the employee or employer at any time, for any reason. These atwill disclaimers often state that such at-will status cannot be changed, except for a written statement signed by both the employee and a high-level employer official. If such statements are far-reaching, for example, stating that the at-will relationship can never be changed or that any employer policy—except the company’s at-will employment policy—can be amended from time to time, such statements may be subject to NLRB challenge. Given the NLRB’s continued scrutiny of employer policies, both unionized and non-unionized employers nationwide should pay close attention.