The NLRB’s Possible Challenge of At-Will Employment Clauses


In the NLRB’s latest journey into non-unionized business practices, one of its Administrative Law Judges (ALJ’s) has decided that an “at-will employment clause” which was part of a non-unionized employer’s employee handbook acknowledgment page violates Section 7 of the National Labor Relations Act (NLRA).  To our knowledge, this is the first time this has happened.
The specific language of the challenged clause was “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.”
The ALJ found that this language violates Section 7 by making it sound as if it is impossible for employees to collectively bargain (aka “bring in a union!”) so as to enter into a collective bargaining agreement with the employer.
We realize that probably every employer reading this who also has an employee handbook has an “at-will employment clause” in it.  We are not suggesting through this alert that you “throw the baby out with the bathwater” by getting rid of all such clauses.  This ALJ opinion still must survive two levels of possible challenge – the NLRB itself, then the courts.
The purpose of this alert is simply to make you aware that at-will employment clauses which contain a seemingly “iron-clad” “no exceptions” provision may be challenged.  For now, there is nothing wrong with declaring that “all employees are at-will” or “all employees are at-will unless they have an express contract signed by a member of Company management” or something along these lines as part of your employee handbook acknowledgement or otherwise.
As always, if you have any questions about drafting your employee handbook in such a way so as to be compliant with state and federal law, including the ever-evolving NLRA, please feel free to contact Bill Trumpeter, or any other member of our Labor and Employment law practice group.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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