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NLRB Closely Scrutinizing “At Will” Employment Comments Las Vegas Employment Attorney Andre Lagomarsino

If an employment contracts exists or an employee is a member of a union, the employee’s employment is not “at will.” For employees who are at-will, generally they can be terminated without just cause and the employee has the freedom to leave his or her position at any time.

Many employers will include some form of an at-will disclaimer in the company’s employee manual. The disclaimer will generally say that employees have been hired as at-will employees and that the employee manual is not a contract between the employer and its employees. If the employee manual makes any promises regarding employment, however, an implied contract between the employer and its employees may be found despite a disclaimer.

Recently, the National Labor Relations Board’s (NLRB) Acting General Counsel claimed that the employment at-will disclaimers in two employee handbooks “chilled or interfered with its employees’ exercise of their rights under the National Labor Relations Act (the Act) to engage in protected concerted activity.”

The American Red Cross Arizona Blood Services Region’s employee handbook contained the statement … “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” According to the NLRB this disclaimer violated the Act because it could be reasonably construed by employees to relinquish their right to engage in concerted activity to alter their at-will status through union representation or collective bargaining. The NLRB required the Red Cross to revise the offensive provision, give its employees a written statement that the disclaimer had been revised, and post notices assuring employees that it would not violate their rights under the NLRA.

In the Hyatt Hotels Corp, the NLRB found that the Hyatt’s policy of requiring employees to sign an acknowledgement of receipt of Hyatt’s employee handbook violated the Act because it contained a statement advising employees that the only way to change their at-will employment status was through the use of a writing signed by the employee and either Hyatt’s executive vice president or president.

Employers should seek the advice of experienced employment attorneys to draft at-will employment disclaimers and ensure the disclaimers are not so overbroad that the disclaimer implies employees are precluded from engaging in concerted activity as a legitimate means of altering their at-will status.

The Las Vegas law office of Lagomarsino Law did not represent anyone involved in any cases that may be referenced above. This commentary is for educational purposes. If you would like to be represented by an attorney in our Las Vegas office, contact our office for a free confidential case review and receive a response within 24 hours. Call Toll Free 866-414-0400.