Sep 122012

Does the “at will” disclaimer in your employee handbook violate the National Labor Relations Act? In New Jersey your employee handbook must have what we call “at will” disclaimers featured prominently on the document in order to prevent the courts from treating it as a contract. An “at will” disclaimer at its core simply says that the handbook is not a contract and does not change the “at will” status of employees to whom it is distributed. Over the years some employers have gotten rather carried away with their “at will” disclaimers, going so far as to say that “at will” status can only be changed in a written document signed by both the employee and the president or CEO of the company or in an even more dramatic form that all other policies in the handbook can be changed at management’s discretion except for the “at will” provision which cannot be changed by anyone. The National Labor Relations Board has recently invalidated a number of these more extreme waivers on the grounds that they serve to discourage employees from pursuing their right to unionize under section 7 of the National Labor Relations Act. The NLRB maintains that provisions of this type give employees the impression that they have waived their right to engage in collective bargaining by signing these waivers or that engaging in collective bargaining would be futile because no contract which gave employees greater job security could be negotiated. Employers should look at the “at will” disclaimers in their handbooks to make sure that they are not so restrictive as to violate the National Labor Relations Act and consult counsel if they have any questions as to which side of the line their language falls.

This article is for informational purposes only. It does not constitute legal advice nor does it create an attorney client relationship. Please contact me or your local labor and employment attorney should you need legal advice.

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