NLRB's Scrutiny of Employment-at-Will Disclaimers Signals a Trend to Employers
In a move that signals a trend to employers, the Acting General Counsel ("AGC") of the National Labor Relations Board ("NLRB" or "Board") recently claimed in two unrelated cases that allegedly overly broad "employment-at-will" disclaimers contained in employee handbooks have the effect of chilling or interfering with employees' exercise of their right under the National Labor Relations Act ("Act") to engage in protected concerted activity. As we previously discussed in "Helpful Guidance Summarizing the National Labor Relations Board's Position on Social Media Issues: Two Reports and One Decision" and "NLRB Acting General Counsel Issues Follow-Up Report on Social Media Cases," both the AGC and the Board have focused significant attention on employers' social media policies. Similar to the employment-at-will disclaimer cases discussed below, a principal issue of the social media cases has been whether such policies interfere with employees' rights to engage in protected concerted activities under the Act when such policies are overly broad. Importantly, and as we have reported in the past, the Board's pronouncements affect non-unionized employers as well as employers with unions, since the Act applies to almost all private sector employers—not only those whose employees are represented by unions.