Most employers assume a handbook policy is lawful if it serves a legitimate business purpose. However, that assumption can create risk under the current National Labor Relations Board (NLRB) standard.
Even in nonunion workplaces, policies that appear reasonable may draw scrutiny if employees could interpret them as restricting rights protected by the National Labor Relations Act (NLRA).
For employers this means an outdated handbook can become evidence in an unfair labor practice investigation.
That’s why every employer should pay attention to the case that set the current standard: Stericycle.
How the NLRB Evaluates Employee Handbook Policies Under Stericycle
“We haven’t changed that handbook in years.” I heard some version of that sentence countless times during my years at the National Labor Relations Board (NLRB). Usually, it came right before someone slid an employee handbook across the table and asked, “So…what exactly is the problem?”
The answer was almost never what they expected.
The handbook prohibited employees from making “negative” comments about the company. Or it required employees to maintain a “positive attitude.” Sometimes it prohibited discussing “confidential information.” To management, those policies sounded perfectly reasonable. To the NLRB, they sometimes sounded like rules that could discourage employees from exercising their rights under federal labor law.
In 2023, the NLRB adopted a new legal standard for evaluating employer work rules. Under the Stericycle standard, the Board looks at the rule through the eyes of an employee, not through the intent of the employer who wrote it. That subtle difference changes everything. A rule can be well intentioned and serve a legitimate business purpose, but still invite scrutiny.
Inside the NLRB
Very few investigations began because the company had a “bad” handbook. Most began because someone actually enforced a policy. For example:
- A supervisor disciplines an employee for criticizing management.
- An employee is told to remove a social media post.
- Someone is warned for discussing workplace concerns with coworkers.
Suddenly, a policy that sat quietly in a handbook for years becomes Exhibit A in an unfair labor practice investigation. The lesson is simple. Policies rarely create problems by themselves. They create problems when they intersect with real workplace decisions
Employee Handbook Policies Worth Reviewing Today
You do not need to rewrite your entire handbook every year. You should, however, periodically review policies that frequently draw attention.
1. Civility Rules
Employers have a legitimate business interest in maintaining a professional and respectful workplace. Requiring employees to avoid threats, harassment, or discrimination is generally very different from requiring employees to avoid “negative” comments about management.
The risk arises when civility language is so broad that employees could reasonably understand it to prohibit protected criticism of management, workplace polices, or working conditions. Employers should distinguish between genuinely abusive or discriminatory conduct and the type of disagreement or criticism that may accompany protected workplace activity.
2. Confidentiality
Protecting trade secrets, proprietary information, and customer data remains critical.
At the same time, employers must take care not to define confidential information so broadly that employees could believe they cannot discuss wages, schedules, or workplace concerns.
The better approach is to identify the information the employer actually needs to protect rather than using a blanket prohibition on discussing “company information” or workplace matters.
3. Social Media
Social media policies should target specific business concerns rather than broadly restricting what employees may say about the company. Legitimate and substantial business interests may include protecting trade secrets and genuinely confidential business information, preventing unlawful harassment or discrimination, protecting customer or patient privacy, and preventing employees from falsely representing that they are speaking on behalf of the company.
The wording matters. A rule aimed at protecting confidential customer information is very different from a rule broadly prohibiting employees from making “negative” or “disparaging” comments about the company. Employees may have protected rights to use social media to discuss wages, hours, working conditions, and other workplace concerns with coworkers or to seek support for group action.
Under the NLRB’s current standard, employers should ask not only whether a social media restriction serves a legitimate business interest, but whether that interest could be advanced through a more narrowly tailored rule that does not unnecessarily burden employees’ protected rights.
What Smart Employers Do
Before updating your handbook, ask four simple questions.
- Why does this policy exist?
- Could an employee misunderstand what it prohibits?
- Is the rule broader than necessary?
- Would I feel comfortable explaining this policy to an NLRB investigator?
If any answer gives you pause, the policy deserves another look.
The best handbooks are not the longest. They are the clearest.
Most handbook problems are not created by employers trying to silence employees. They are created by employers trying to solve legitimate workplace issues with language that unintentionally reaches too far.
That is why a handbook should not be treated as a document you finish. It should be treated as a document you revisit.