This has been a year of radical decisions from the National Labor Relations Board (NLRB), nearly all of them favoring employees. With the appointment of a new General Counsel, the Board is poised to continue its current trend of invalidating long-accepted employer practices. 
New General Counsel
The NLRB recently announced that the Senate had confirmed Richard F. Griffin, Jr., as its new General Counsel. Before his appointment to that position, Griffin served the NLRB as a staff attorney and a Board member. Earlier in his career, he was a union attorney, working with the International Union of Operating Engineers (IUOE) as its general counsel.
Griffin’s appointment is expected to continue the NLRB’s current trajectory. In recent years, the NLRB has taken a number of positions that are widely viewed as prounion, including supporting new rules for “quickie” elections that postpone an employer’s election challenges until after the representation election has concluded. In addition, the NLRB has invalidated a wide range of employer practices, finding that they have a propensity to chill union organizing activity.
Troubling NLRB positions
Social media policies. Some of the NLRB’s most publicized opinions deal with employer social media policies. Of particular concern to the Board is any policy that prohibits employees from engaging in concerted activity via social media (i.e., online discussions about wages, hours, or terms and conditions of employment). Any policy prohibiting employees from disparaging supervisors or coworkers online may pose a problem. One of the few policies the Board has upheld is Wal-Mart Stores, Inc.’s, citing its relatively limited language and clearly defined examples of prohibited conduct, such as discrimination or harassment based on protected characteristics, defamation, and threats of violence.
Investigation policies. Many employers include a confidentiality provision in their investigation policy stating that employees and managers must maintain the confidentiality of any workplace investigation. Generally, that includes an admonition to employee witnesses not to share the nature of their discussions with HR.
The NLRB does not approve of such policies and has held that an employer’s interest in maintaining the integrity of its investigation isn’t sufficient to outweigh any limits on concerted activity. Instead, each case must be considered on its own merits. It’s unclear whether an employer’s interest in preventing retaliation is sufficient to justify a request for confidentiality.
Worker expression policies. The NLRB has also targeted a range of policies that it views as limiting worker expression in a way that chills concerted activity. Most surprising was its move to strike down an employer’s workplace civility policy. Believe it or not, the Board objects to policies requiring that employees be respectful and refrain from using vulgar language.
At-will-employment policies. Most troubling of all is the Board’s stance on employment-at-will policies. Employers are often advised to include at-will-employment statements in their employee handbooks indicating that employment is at will and may be terminated by either party for any lawful reason. Some policies also include a statement that the at-will nature of the employment relationship cannot be altered. That’s the issue for the NLRB’s General Counsel. (The Board has yet to rule on the issue.)
The General Counsel has argued that unionizing activity can in fact alter the at-will nature of the employment relationship. An assertion to the contrary might therefore chill organizing activity by suggesting that efforts to unionize are futile. Although that view is worrisome, complying with it is an easy fix. As long as your at-will policy provides that the nature of the employment relationship may be altered by an authorized member of management (in a signed written document!), it should pass muster.
Bottom line
The past 12 months have been a banner year for the NLRB. It has issued a series of decisions that strike down reasonable employer policies that are common to most companies’ handbooks. Moreover, the Board’s decisions are based on speculation about what a reasonable employee might think. 
Consequently, you would be wise to review your personnel policies with a careful eye toward whether your policy language might be seen as limiting employees’ discussion of matters affecting their employment.
Lauren E.M. Russell is an attorney with Young Conaway Stargatt & Taylor, LLP in Wilmington, Delaware. She may be contacted at lrussell@ycst.com.