After issuing two decisions insinuating that traditional at-will employment clauses may violate the National Labor Relations Act (NLRA), the National Labor Relations Board (NLRB) Office of the General Counsel released two advice memoranda on October 31, 2012, which retreated slightly from this anti-at-will employment clause stance.

These advice memoranda indicated that in assessing the legality of an at-will employment clause, the NLRB will consider: 1) whether employees could reasonably construe the language of the clause as prohibiting activities potentially protected by the NLRA; 2) whether the clause was written in such a way as to restrict union activity; and 3) whether the language in the clause restricts employees from exercising any of their rights protected by the NLRA.

In the cases decided under each memorandum, the NLRB upheld the respective at-will employment clauses after finding that the language in each clause complied with the three above prongs and that each clause did not, directly or indirectly, require employees to waive their right to change their at-will status.

The Board still noted, however, that the law governing at-will employment clauses “remains unsettled.” As a result, employers are advised to submit their employee handbooks to an attorney for review. The attorneys at DLM Legal have a wide range of experience in employment law and will review your employee handbook to ensure its compliance with federal law. To speak with one, email info@dlmlegal.com or call 216.635.0002.