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NLRB Lightens Grip on At-Will Language

Gerald Lutkus

Gerald F. Lutkus

Of Counsel (Retired)

Two recent advice memoranda from the NLRB’s Division of Advice suggest that the NLRB may be loosening its grip on “at-will” language and acknowledgments in employer handbooks. After sending the employer community into a bit of a tizzy during mid-2012 with rulings that common at-will language violated the NLRA, these recent memoranda seem to take a less doctrinaire approach.

In two memoranda released by Associate General Counsel Barry J. Kearney, Kearney advised Regions 21 and 32 that certain handbook language dealing with at-will employment was legal and could not be reasonably construed to restrict employee Section 7 activity.

In Fresh & Easy Neighborhood Market, Kearney gave the NLRB’s blessing to handbook language which stated:

Nothing in this [Handbook] changes this at-will relationship, guarantees you a benefit, creates a contract of continued employment or employment for a specified term, or any contractual obligation that conflicts with the [Employer’s] policy that the employment relationship with its employees is at-will.

No representative of the [Employer] other than a[n Employer] executive has the authority to enter into any agreement for employment for a specified duration or to make any agreement for employment other than at-will. Any such agreement that changes your at-will employment status must be explicit, in writing, and signed by both a[n Employer] executive and you.

In addition, the memoranda approves of an acknowledgment clause which includes the language: “I further understand that the foregoing provision regarding my status as an at-will employee may only be changed by a written agreement signed by a[n Employer] executive and me that refers specifically to this provision.”

In Windsor Care Centers, Kearney also approved of at-will language which concluded with the following statement: “Only the Company President is authorized to modify the Company’s at-will employment policy or enter into any agreement contrary to this policy. Any such modification must be in writing and signed by the employee and the President.”

In a footnote, the Board’s Advice Division distinguishes this language from that found by an ALJ to violate Section 7 in American Red Cross Arizona Blood Services Region, 28-CA-23443 (“I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.”).

In light of these two advice memoranda, copies of which are available here and here, as well as the advice memoranda given in Rocha Transportation and Mimi’s Café, discussed on this Blog on November 1, 2012, should more clearly set forth language that employers may use with respect to the at-will relationship.


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