Employee handbooks are a cornerstone of workplace culture and compliance—but their language can also create legal exposure if not carefully crafted. This article reviews what phrases, policies, or “rules of conduct” employers must avoid under current NLRB and EEOC guidance. Learn how to balance organizational values with employee rights while maintaining compliant, enforceable policies.
Many business leaders assume they understand employee rights, but recent enforcement trends reveal gaps that could cost your organization significantly. The National Labor Relations Board (NLRB) has dramatically intensified its scrutiny of employee handbooks, with unfair labor practice charges increasing 7% in the first half of fiscal year 2024 alone. This follows a concerning pattern—charges rose 10% in 2023 compared to 2022, and 19% in 2022 versus 2021.
What's driving this surge? The NLRB has fundamentally changed how it evaluates workplace policies, making it significantly easier for employees to challenge handbook language. Under the new Stericycle standard adopted in August 2023, policies that might have been acceptable just two years ago now face presumptive unlawfulness. This isn't just a legal technicality—73% of executives, in-house counsel, and HR professionals surveyed in 2024 expect NLRB enforcement actions to have a moderate or significant impact on their business.
Understanding the scope of NLRA protections
The National Labor Relations Act of 1935 grants employees the right to engage in "protected concerted activity" for collective bargaining or mutual aid regarding workplace conditions. This covers discussions about wages, benefits, working conditions, and other employment terms—whether employees are unionized or not.
Here's what many business leaders don't realize: these protections extend far beyond union organizing. Employees can legally discuss workplace concerns with colleagues, post about work conditions on social media, or share employment information with third parties like journalists or government investigators. The NLRB interprets these rights broadly, viewing any policy that might discourage such communications as potentially unlawful.
The law generally covers all non-supervisory employees. Supervisors aren't protected under the NLRA, which means employers can technically maintain more restrictive policies for management—though this creates administrative complexity that most organizations avoid.
How the NLRB evaluates handbook policies today
The landscape shifted dramatically in August 2023 when the NLRB adopted the Stericycle standard, overturning the more employer-friendly Boeing framework. This change fundamentally altered how workplace policies are evaluated and has already produced concrete consequences.
Under the new standard, the NLRB examines whether employees could "reasonably construe" a policy as prohibiting protected activity. The Board considers this from the perspective of an "economically dependent" employee who might interpret ambiguous language as restrictive. If a policy could reasonably be seen as chilling protected activity, it's presumptively unlawful.
Employers can rebut this presumption only by proving the policy advances a legitimate business interest that cannot be achieved through more narrowly tailored language. This burden-shifting approach makes it significantly harder to defend broad workplace rules.
The real-world impact has been swift. Multiple Administrative Law Judge decisions in 2024 have struck down policies requiring employees to communicate "respectfully" or "professionally," finding these terms too vague and potentially chilling. Other targeted policies include confidentiality rules that could be interpreted as prohibiting wage discussions and non-solicitation provisions.
Seven handbook restrictions that will trigger NLRB challenges
1. Blanket prohibitions on negative comments or gossip
Policies that broadly ban "negativity," "disparaging comments," or "gossip" about the employer face significant scrutiny. Employees have the right to discuss genuinely problematic working conditions, even if their comments reflect poorly on the company. The key distinction: you can prohibit maliciously false statements, but not statements that are simply negative or based on incomplete information.
2. Vague professionalism requirements
Requirements for employees to "conduct themselves professionally" or "maintain professional demeanor" are increasingly problematic. Without specific definitions, employees might reasonably interpret "professional behavior" as excluding criticism of management or workplace conditions. If you include professionalism standards, define them precisely to avoid restricting protected communications.
3. Overly broad confidentiality policies
While employers can protect legitimate proprietary information and ensure employee safety, sweeping confidentiality requirements often cross into unlawful territory. Policies cannot prevent employees from discussing wages, benefits, or working conditions with colleagues or outside parties. Recent NLRB decisions have targeted even seemingly reasonable confidentiality policies that could be interpreted as restricting protected discussions.
4. Mandatory meeting attendance policies
This area has seen dramatic developments in 2024-2025. The NLRB ruled in November 2024 that requiring employees to attend meetings where employers express views on unionization violates the NLRA. Additionally, twelve states have now passed legislation prohibiting mandatory "captive audience" meetings on religious or political matters, with California and Illinois laws taking effect January 1, 2025.
5. Investigation confidentiality requirements
Policies requiring employees to keep workplace investigations confidential face heightened scrutiny. While legitimate business interests may support some confidentiality measures, blanket requirements often conflict with employees' rights to discuss working conditions. The NLRB has particularly targeted policies that could discourage employees from discussing investigations with colleagues or seeking outside support.
6. Social media and communication restrictions
Broad social media policies that prohibit "negative" posts about the employer or require pre-approval for online communications about work regularly trigger NLRB challenges. Employees retain the right to discuss workplace issues on social platforms, even if those discussions are unflattering to the organization. Policies must narrowly target specific harms like harassment or disclosure of trade secrets.
7. Non-solicitation and distribution rules
Traditional non-solicitation policies have come under increased scrutiny, particularly those that broadly restrict employee communications about workplace organizing. While employers can regulate solicitation during work time and in work areas, policies cannot be so broad as to chill protected discussions about employment terms.
The financial and operational risks of non-compliance
Beyond NLRB enforcement, poorly drafted handbook policies create multiple risks. Legal experts warn that a single ambiguous policy can provide grounds for expensive lawsuits and regulatory penalties. Government agencies including the Department of Labor regularly audit businesses for handbook violations related to wage and hour laws, family leave policies, and worker classifications.
The hidden costs extend beyond legal fees. Non-compliant handbooks can damage employee morale, increase turnover, and create operational inefficiencies. When employees don't trust that policies are fairly applied or legally sound, it undermines management credibility and organizational culture.
If the NLRB finds handbook policies unlawful, employers must withdraw those policies immediately. More seriously, if an employee is disciplined under an unlawful policy, the employer faces liability for back pay and potential reinstatement. With enforcement trends showing no signs of slowing, these risks are only increasing.
Best practices for handbook compliance in 2025
Smart organizations are proactively reviewing policies rather than waiting for challenges. Start by examining any language that could be interpreted as restricting employee communications about workplace conditions. Look particularly at policies adopted before the Stericycle decision, as the new standard applies retroactively.
Consider adding disclaimer language clarifying that policies don't interfere with Section 7 rights, though this alone won't save an otherwise problematic policy. Focus on precision—policies should advance specific business interests using the narrowest possible language.
Stay current with evolving state laws. Beyond NLRB considerations, 2024-2025 has brought significant new requirements around pregnancy accommodations under the Pregnant Workers Fairness Act, expanded paid leave laws in multiple states, and new workplace violence prevention requirements in California and New York.
Building compliant, effective workplace policies
The intensified enforcement environment doesn't mean abandoning reasonable workplace standards. Organizations can still maintain policies that advance legitimate business interests—they just need to be more precise and thoughtful about language.
Work with employment law specialists to review existing policies and draft new ones that withstand current legal standards. Regular policy audits, ideally annually, help identify potential issues before they become problems. Remember that handbook policies often serve as evidence in employment disputes, making compliance both a legal necessity and a strategic advantage.
The key is striking the right balance: protecting legitimate business interests while respecting employee rights. In today's enforcement environment, that balance requires both legal expertise and practical understanding of how policies affect day-to-day operations.
Moving forward with confidence
The current regulatory environment demands that business leaders take employee handbook compliance seriously. The cost of non-compliance—in legal fees, regulatory penalties, and operational disruption—far exceeds the investment in getting policies right from the start.
Organizations that proactively address these challenges position themselves for success. They avoid costly enforcement actions, build stronger employee relations, and demonstrate commitment to lawful employment practices. In contrast, companies that rely on outdated or overly broad policies face increasing risks as enforcement continues to intensify.
Need help ensuring your employee handbook complies with current legal standards while protecting your business interests? Helios HR specializes in creating practical, compliant workplace policies that work for real businesses. Our services include:
- HR consulting to review and update your current handbook policies
- Compliance risk management to identify and address potential NLRB violations
- Strategic HR planning to align policies with business objectives
- Training and development for managers on lawful policy implementation
Schedule a consultation with our HR experts to protect your organization from costly handbook violations while building policies that support your business goals.
Frequently Asked Questions
1) What kinds of handbook phrases are most likely to violate the NLRA?
Broad, absolute restrictions on “negative,” “disrespectful,” or “confidential” employee communications—especially about wages, hours, or working conditions—can chill protected concerted activity. Use precise, behavior-based language tied to legitimate business interests.
2) Can we prohibit employees from discussing pay or company policies on social media?
Not categorically. You may restrict unlawful harassment, disclosure of true trade secrets, or speaking as an official company representative without authorization. But employees generally have the right to discuss pay and workplace conditions, including online.
3) How do we handle “civility,” “no gossip,” or “no negativity” rules?
Reframe them to target specific misconduct (e.g., threats, discriminatory harassment) and include examples. Avoid blanket bans on criticism of management, compensation, scheduling, or safety.
4) Are confidentiality clauses in investigations still permissible?
Case-by-case. You can instruct confidentiality when you have a legitimate business need (e.g., witness protection, evidence preservation). Document the rationale and avoid permanent, across-the-board bans.
5) What’s the safest process for updating our handbook now?
Audit policies for overbroad language, rewrite with objective behaviors, add examples and savings clauses, train managers on application, and schedule annual legal/HR reviews. Include version control and employee acknowledgment tracking.
Resources
U.S. National Labor Relations Board (NLRB) — Employee Rights Under the National Labor Relations Act — https://www.nlrb.gov/about-nlrb/rights-we-protect/employee-rights
Society for Human Resource Management (SHRM) — NLRB Continues Crackdown on Employee Handbook Policies — https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/nlrb-handbook-policies.aspx
HR Dive — How to Avoid Problematic Handbook Language in 2025 — https://www.hrdive.com/news/employee-handbook-policies-hr-compliance/
Forbes — Employee Handbooks That Protect Your Business — https://www.forbes.com/advisor/business/employee-handbook/
Business Insider — The Costly Mistakes Hidden in Your Employee Handbook — https://www.businessinsider.com/employee-handbook-mistakes