Can An “At-Will” Employment Disclaimer Violate the NLRA?

The National Labor Relations Board (the Board) has started to move aggressively against “at-will” employment disclaimers that many employers include in their handbooks. Typically, employers include an “at-will” employment policy, which states that employees may be terminated at any time for any lawful reason, with or without notice and with or without cause.  Further, employers advise employees that their “at-will” employment status may not be amended absent a written document signed by a high-level official and require employees to sign an acknowledgement of these provisions.  These statements are intended to counter any argument by employees that the handbook creates a contract of employment, or that they entered into an oral employment contract with the employer.  The Board has recently taken the position that broadly written “at-will” employment policies chill employee’s’ rights to engage in protected concerted activity under Section 7 of the National Labor Relations Act (the Act).

In N.L.R.B. v. Am. Red Cross Ariz. Blood Servs. Region, 2012 WL 311334 (N.L.R.B. Feb. 1, 2012), a Board ALJ found that the American Red Cross violated the Act by maintaining an employee handbook policy that stated, in part, “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” The ALJ opined that the clause could be reasonably construed by an employee as relinquishment of his or her right to engage in action to change “at-will” status through union representation, collective bargaining or other protected concerted activity.  The ALJ reasoned such an implicit waiver impermissibly chills employees’ exercise of Section 7 rights.

Then, on February 29, 2012, the Board’s Acting General Counsel issued a Complaint against Hyatt Hotels Corporation (Hyatt), asserting that Hyatt’s broadly written “at-will” employment disclaimer violated the Act by interfering with employees’ Section 7 rights.  At issue was Hyatt’s policy statement that the “at-will” status of employment could only be changed in a writing signed by the employee and either the Executive Vice President/Chief Operating Officer or  President.  Again, the Board took the position that requiring an employee acknowledgement that “at-will” employment could only be altered by written agreement amounted to an interference with protected Section 7 rights.

In response to these developments, employers should carefully examine their “at-will” employment policies.  Broadly worded disclaimers, which unequivocally state that “at-will” employment cannot be altered or can only be changed in a certain way, should be avoided. Employers may wish to consider language that recognizes employees’ Section 7 rights, while asserting the employer’s position on “at-will” employment.