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NLRB Scrutiny of At-Will Disclaimers in Employee Handbooks

The National Labor Relations Board (“NLRB”), which has jurisdiction to determine whether employment policies – in both union and non-union workplaces – unlawfully interfere with employees’ rights under the National Labor Relations Act (the “NLRA”) to engage in “concerted activity,” recently issued “advice memoranda” concerning the at-will disclaimers found in most employee handbooks. In these memoranda, the NLRB’s General Counsel addresses at-will disclaimers which state either that no company representative has the authority to alter the at-will relationship or that only certain representatives have the authority to do so. Such disclaimers, the General Counsel found, do not violate the NLRA, because they do not elicit from employees a promise to refrain from efforts to change their at-will status through concerted activity. The General Counsel distinguished such disclaimers from those which state that “the at-will employment relationship cannot be amended, modified or altered in any way.” In early 2012, an NLRB administrative law judge found the latter disclaimer language unlawful, because it requires employees to effectively waive the right to “advocate concertedly” to change their at-will status. Notably, the press release announcing the recent advice memoranda suggests that the NLRB will continue to scrutinize at-will disclaimers in non-union employee handbooks. 

http://www.nlrb.gov/news/advice-memos-find-will-clauses-two-employee-handbooks-are-lawful

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