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New Risks for At-Will Employment Disclaimers

By Deanne Katz, Esq. on October 16, 2012 | Last updated on March 21, 2019

When it comes to hiring employees, the two basic forms of employment are at-will and for-cause. The titles have to do with how an employee can be fired.

For-cause, or non at-will, employees can only be fired based on a pre-agreed upon reason, often in the employment contract or handbook. NO the other hand, at-will employees can be fired at any time and for any reason that isn't unlawful. That's often what employers are looking for.

To avoid altering at-will employment many businesses include a disclaimer in their employee handbook to specify that employment is at-will. But a recent ruling by the NLRB could make that a thing of the past.

Happily for employers, the at-will disclaimers struck down by the NLRB in two cases contained similar language, reports Business Management Daily.

The disclaimers both included language stating at-will employment could not be altered or modified without written permission from a high-level executive. That violated employees' rights to engage in collective bargaining, according to the NLRB.

All employees have a right to organize and participate in unions. As part of that right, companies must recognize appropriate unions and cannot retaliate against union members.

The problem with the struck-down provisions is that they indicated that even with union collective bargaining an at-will employee could not change his employment status.

More specifically, the NLRB objected to language which discouraged employees from joining unions. If disclaimers make union membership seem futile they now are more likely to be struck down.

The two cases decided recently target similar language about at-will employment but it may not end there. At-will employment agreements may become a target for the NLRB, according to Business Management Daily.

Even if you don't have an at-will disclaimer or think yours is different from the ones struck down, it's still a good time to review your employment agreements with a lawyer.

Having unlawful agreements could cost your company in an employment dispute. Be proactive in checking that your agreements will survive a court battle and you'll save money, and time, in the long run.

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