Time & Attendance
Prevent Call Outs
Implementation & Launch
By Staff Report
Nov. 1, 2012
If you are a non-union employer, you likely have an employee handbook that sets forth the policies and procedures that guide your relationship with your employees. And, if you have an employee handbook, it likely contains a disclaimer stating that employees are at-will, that employees can be fired at any time for any reason, and that nothing in the handbook alters that at-will status. Indeed, employers commonly deploy these disclaimers to avoid claims by employees that the handbook creates a binding and enforceable contract.
Consider the following three at-will disclaimers, taken from real, live employee handbooks:
What’s the difference between these three policies? According to the February 1, 2012, opinion of a National Labor Relations Board Administrative Law Judge, the first is an illegal and overly broad restraint on the right of employees to engage in protected concerted activity. According to two advice memoranda published yesterday by NLRB Acting General Counsel Lafe Solomon, the second and third pass muster and are not illegal.
What’s the difference? According to Solomon, the distinction lies in the use of the personal pronoun, “I.”
The ALJ found that the signing of the acknowledgement form, whereby the employee—through the use of the personal pronoun “I”—specifically agreed that the at-will agreement could not be changed in any way, was “essentially a waiver” of the employee’s right “to advocate concertedly … to change his/her at-will status.” Thus, the provision in American Red Cross more clearly involved an employee’s waiver of his Section 7 rights than the handbook provision here.
By comparison, the Mimi’s Cafe and Rocha Transportation disclaimers merely serve to reinforce the unambiguously-stated purpose of the employers’ at-will policies, and do not require employees individually to agree never to alter their at-will status.
These distinctions are nuanced, and the NLRB recognizes their unsettled nature. From the NLRB’s website:
Because Board law in this area remains unsettled, the Acting General Counsel is asking all Regional Offices to submit cases involving employer handbook at-will provisions to the Division of Advice for further analysis and coordination.
It is refreshing (surprising? relieving?) to see that the NLRB’s Office of General Counsel is backing off the position that any at-will disclaimer violates the NLRA, and is willing to evaluate them on a case-by-case basis.
For now, you should take a look at your handbook disclaimers and consider scrubbing them of personal pronouns. Instead, consider using the examples from either Mimi’s Cafe or Rocha Transportation as a template.
Of course, the validity of that template to avoid a binding contract under state law could vary from state to state. For this reason, you are best served running any disclaimer by your employment counsel before rolling it out to your employees.
Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or email@example.com.
Schedule, engage, and pay your staff in one system with Workforce.com.
federal law, minimum wage, pay rates, state law, wage law compliance
Staffing Management4 proven steps for tackling employee absenteeism
absence management, Employee scheduling software, predictive scheduling, shift bid, shift swapping
Time and Attendance8 ways to reduce overtime and labor costs
labor costs, overtime, scheduling, time tracking, work hours
Don't miss out on the latest tactics and insights at the forefront of HR.