ABSTRACT
This Article tackles the ubiquitous problem of employer-drafted ‘disclaimers’. Disclaimers are standardized provisions, found in a variety of human resources documents, that confirm employees’ at-will status. They typically preserve employers’ right to change the terms of employment at any time, sometimes without advance notice. The most careful disclaimers also renounce the legal significance of contrary statements or promises by supervisors and other managerial agents, thus foreclosing contractual obligations that would otherwise arise. Meanwhile employers scrupulously preserve the legal enforceability of terms they desire such as restrictive covenants and arbitration agreements.
Currently there is no defensible legal framework for assessing employment disclaimers, nor has there been any meaningful theoretical engagement with their contractual status. Most courts simply treat these disclaimers as prima facie valid. As a result, employers not only avoid liability for specific commitments, they effectively remove one side of the employment relationship from the realm of contract. Our Article argues that courts defer too readily to disclaimers, and despite purported reliance on contract principles, their deferential approach is not doctrinally compelled.
We propose instead a holistic framework more suitable to the unique characteristics of employment contracts. This approach draws on three aspects of mainstream contract law and theory: (1) a robust literature that questions the validity of assent to consumer contract boilerplate; (2) interpretive canons and contextualist techniques that construe contract language against the drafter and in conformity with the reasonable expectations of the weaker party; and (3) doctrines such as unconscionability and the duty of good faith that impose modest but meaningful substantive limits on drafting. These prescriptions are particularly appropriate in light of employment’s ‘hyper-relational’ character, in which the parties’ obligations are never expressed in a final, formal writing. We propose a holistic treatment of disclaimers that acknowledges them as just one source of governing terms that must ultimately be reconciled with (and potentially subordinated to) conflicting expressions of commitment and nonwaivable common law obligations. In short, we aim to free employment contract law from the tyranny of exculpatory boilerplate.
Arnow-Richman, Rachel S and Verkerke, JH, Defusing Disclaimers (January 18, 2026), Virginia Public Law and Legal Theory Research Paper No 2026-08.
Leave a Reply