[author: Joseph S. Sileo]
The National Labor Relations Board (NLRB) continues its quest to protect (read: expand) employee rights, even in non-union settings, this time by attacking at-will employment disclaimers. It is common for employers to include at-will employment disclaimers in employee handbooks. Typically, these statements include an acknowledgment that the employment relationship is terminable at-will and that the employer can change employment terms at any time.
In a recent decision, an NLRB Administrative Law Judge (“ALJ”) determined that the American Red Cross Arizona Blood Services Region violated Section 8(a)(1) of the NLRA by including an at-will disclaimer acknowledgement in its employee handbook. The acknowledgement at issue included typical disclaimer language defining at-will employment, along with a statement that the employee “agree[s] that the at-will employment relationship cannot be amended, modified or altered in any way.” Employees were required to sign the acknowledgment following receipt of the handbook.
The ALJ considered whether the at-will disclaimer violated Section 8(a)(1) of the NLRA by analyzing “whether the rule would reasonably tend to chill employees in the exercise of [their rights to engage in protected concerted activities].” The ALJ concluded that there was “no doubt” employees would reasonably construe the disclaimer language to prohibit certain protected activity under the Act. More specifically, the ALJ reasoned that the disclaimer operated as a waiver by which employees relinquished their rights under the Act. The disclaimer, in the opinion of the ALJ, conveyed to employees the unlawful message that continued employment was conditioned on agreement that they not enter into any contract (including a union contract) or engage in efforts to alter the at-will employment relationship. The ALJ concluded that the employer violated the Act because its at-will disclaimer “chilled” the exercise of employee rights, including the rights to collectively negotiate new employment terms, seek union representation or a collective bargaining agreement.
This case illustrates the NLRB’s continued focus on expanding its reach and enforcement efforts into the non-union employment setting. Other recent examples include restricting an employer’s right to discipline employees for disparaging social media postings and prohibiting employers from instructing employees to maintain confidentiality in connection with workplace investigations. These rulings are also based on the theory that such employer actions violate employees’ Section 7 rights. These decisions require employers to keep NLRA rights in mind when communicating with employees (including non-union employees) about their rights and obligations. In light of the NLRA’s new crusade on these issues, employers are well-advised to carefully draft disclaimers and similar employee communications in a manner that would withstand scrutiny by the NLRB.
