Kathleen Bray

In the October E-Letter, we reported yet another example of the NLRB’s apparent attempt to expand its traditional regulatory boundaries when it challenged an at-will employment provision in an employee handbook under Section 8 of the NLRA. In that case, an Administrative Law Judge held that an at-will employment provision requiring the employee to sign an acknowledgement form stating that “the at-will employment relationship cannot be amended, modified or altered in any way” was unlawfully broad as it was “essentially a waiver” of the employee’s right “to advocate concertedly” under Section 8 of the NLRA. In the last two months, the NLRB has reviewed other at-will employment provisions and taken the position that provisions that limit the person(s) that have the authority to change the employees’ at-will employment relationship—rather than requiring the employee to acknowledge that the at-will status could not be altered—do not violate the Section 8 of the NLRA. Under the recently issued NLRB Advice Memoranda, a provision prohibiting a manager, supervisor, employee, or other company representative from entering into an agreement with an employee for an employment arrangement other than at-will is permissible.