"At Will" Survives NLRB Review - COTW #116

It's a two-for-one special this week! The Cases of the Week are a pair of advice memos from the NLRB finding not one, but two "at will" clauses lawful (and the people rejoiced).

An administrative law judge recently ruled that requiring an employee to sign the following "at will" clause is unlawful: "I further agree that the at-will employment relationship cannot be amended, modified or altered in any way." You can read the opinion here.

So, what were the lawful clauses? First up, Mimi's Cafe (opinion here):

AT-WILL EMPLOYMENT The relationship between you and Mimi's Cafe is referred to as "employment at will." This means that your employment can be terminated at any time for any reason, with or without cause, with or without notice, by you or the Company. No representative of the Company has authority to enter into any agreement contrary to the foregoing "employment at will" relationship. Nothing contained in this handbook creates an express or implied contract of employment.

Okay, seems reasonable enough. But, then again, so did the one that was ruled unlawful. Up next, Rocha Transportation (opinion here):

Employment with Rocha Transportation is employment at-will. Employment at-will may be terminated with or without cause and with or without notice at any time by the employee or the Company. Nothing in this Handbook or in any document or statement shall limit the right to terminate employment at-will. No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.

These all seem pretty similar. So, why are the last two lawful and the first one is not? The last two contain a paragraph of extraordinarily similar analysis (this is from Rocha):

[T]he ALJ found that the signing of the acknowledgement form, whereby the employee-through the use of the personal pronoun "I"-specifically agreed that the at-will agreement could not be changed in any way, was "essentially a waiver" of the employee's right "to advocate concertedly to change his/her at-will status." Thus, the provision in American Red Cross more clearly involved an employee's waiver of his Section 7 rights than the handbook provision here. The parties settled that case before Board review of the ALJ's decision.

Seriously!? The big difference is the use of the pronoun "I"!? In any event, the memo also acknowledged:

Because the law in this area remains unsettled, the Regions should submit to the Division of Advice all cases involving employer handbook provisions that restrict the future modification of an employee's at-will status.

Here I thought "at will" employment was settled law already. Apparently every single employee handbook I've ever seen in my entire life is now suspect, because they all contain an "at will" clause. What am I supposed to tell clients? "Well . . . just don't use 'I' . . . other than that, it's 'unsettled.'" Or at least unsettling.