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NLRB New Stance on Employee At Will Language

Dresser & Associates

NLRB Takes an Aggressive New Stance on At-Will Language

NLRB-LogoEmployee At-Will: A common-law rule that an employment contract of indefinite duration can be terminated by either the employer or the employee at any time for any reason; also known as terminable at will.

Interestingly enough, the U.S. remains the sole major economy to utilize an “at-will” clause in employment agreements, applying to all employees except for those protected by a “good-cause” agreements, or those under contracts for a specified length of time. Recently, the language that advises employees of the nature of their “at-will” employment in both company handbooks, and in the acknowledgements that employees sign, has come under attack by the National Labor Relations Board (“NLRB”) stating that, in some cases, they violate the National Labor Relations Act (“NLRA”).

The major issue arose when, in June 2012, the NLRB stated that, “at-will employment provisions in employee handbooks that prohibit changes in the terms and conditions of employment except in a written document signed by a company executive violate the right of employees to participate in union-organizing activities under Section 7 of the NLRA” (Rougeux para. 4).

The NLRA is allowing employers to use the “at-will” verbiage with some flexibility in employee handbooks and they have backed down from their previously aggressive stance. However, if, “at-will” employment language is present in a company’s handbook, employer’s will want to consider adding a clause stating that the “at-will” disclaimer does not, in any way, intend to limit, or reduce an employee’s right under the NLRA; nor does it prohibit joining a union, selecting union representatives, or discussing terms of employment with co-workers. Lastly, the language of the handbook will violate the NLRA if it leads employees to believe that the above conduct violates the employment contract. Employers are encouraged to seek legal counsel with any further questions.

References:

Cumming, Gregory. 2 November 2012. Erlich Law Office, accessed 4 December 2012.
<http://erlichlawoffice.com/erlich-law-blog/2012/11/2/nlrb-clarifies-uses-of-at-will-employment-terminology-in-employee-handbooks>

5 September 2012 Rougeux & Associates, accessed 4 December 2012.
<http://www.rougeuxpllc.com/employment-law-blog/entry/nlra/nlrb-attacks-at-will-employment-acknowledgements>

Photo Credit: NABETCWA

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