Decoding the New NLRB Decision: A Guide to Navigating How Your Employee Handbook May Need to Change

The National Labor Relations Board (NLRB) is a federal agency that enforces the National Labor Relations Act (NLRA), which protects employees' rights to engage in concerted activity—discussing wages, working conditions, and grievances with coworkers, organizing unions, and taking collective action for mutual aid. Critically, these NLRA protections apply to most private-sector employees regardless of whether they are in a union. NLRB decisions matter for employee handbooks because the Board regularly reviews workplace policies and determines whether they violate the NLRA by having a 'chilling effect' on employees' exercise of protected rights. Rules that prohibit employees from discussing wages, disparaging the company, engaging in social media activity about workplace conditions, or using company communication channels for non-business purposes have all been found to violate the NLRA in certain formulations. The NLRB's standard for evaluating handbook policies has shifted significantly over recent years—moving between pro-employer and pro-employee interpretations depending on the Board's composition. The 2023 Stericycle decision reinstated a more employee-protective standard, requiring employers to ensure that ambiguous handbook policies cannot reasonably be interpreted by employees as restricting NLRA-protected activity. Wendy Sellers guides HR professionals through the implications of this decision in her Aurora Training Advantage webinar, providing practical guidance on which handbook provisions are now at risk and how to revise them.

Recent NLRB decisions, particularly the 2023 Stericycle ruling that significantly tightened the standard for evaluating workplace policies, put several common handbook provisions at heightened risk of being found unlawful. Confidentiality policies that prohibit employees from discussing 'company information' broadly—without carving out explicit permission to discuss wages, hours, and working conditions—have been challenged as interfering with NLRA-protected wage discussion rights. Social media policies that prohibit 'disparaging' or 'negative' company posts are problematic when the language is broad enough to capture protected concerted activity, such as employees discussing working conditions publicly. Non-disparagement clauses in active employment policies (as opposed to carefully crafted separation agreements) raise concerns under NLRB standards. At-will employment acknowledgment language in some formulations has been found to suggest employees cannot engage in collective action to change their employment relationship. Workplace civility or professionalism policies can violate the NLRA if they effectively prohibit the type of vigorous, even confrontational communication that characterizes concerted activity. Rules restricting the use of company email systems may restrict protected activity if they prohibit non-work communications without a legitimate operational justification. Wendy Sellers reviews the specific risk areas in her Aurora Training Advantage NLRB decision webinar, providing HR professionals with the guidance needed to audit and revise their current handbook language.

Revising handbook policies for NLRB compliance requires a systematic audit followed by targeted revisions that narrow overly broad restrictions while preserving legitimate employer interests. The compliance process should begin with a full handbook review through the lens of the new NLRB standard: for each policy, ask whether a reasonable employee could interpret this rule as restricting discussion of wages, working conditions, or collective action with coworkers. Policies that pass this test can be retained; those that fail need revision. Key revision principles include: adding specific NLRA carve-out language to confidentiality policies ('Nothing in this policy restricts employees' rights to discuss wages, hours, or working conditions as protected under the National Labor Relations Act'); narrowing the scope of behavioral restrictions to clearly unlawful or specifically harmful conduct rather than broadly defined negativity; including explicit savings clauses that preserve NLRA rights even where other policies might otherwise be interpreted to restrict them; and eliminating policies that serve no legitimate employer purpose beyond restricting protected activity. Employment counsel should be involved in handbook revisions—the cost of an NLRB unfair labor practice charge or the reputational impact of being labeled a labor violator significantly exceeds the cost of legal review. Wendy Sellers covers best practices for NLRB-compliant handbook language in her Aurora Training Advantage webinar, including specific examples of problematic and revised policy language across common handbook sections.

The National Labor Relations Act grants employees a set of protected rights under Section 7 that employers may not restrict through policies, handbook provisions, or disciplinary action. The core Section 7 rights include: the right to organize and form or join a union; the right to bargain collectively through representatives of their choosing; and the right to engage in 'concerted activities for the purpose of collective bargaining or other mutual aid or protection.' This last right—concerted activity for mutual aid—extends well beyond formal union organizing to protect everyday activities: discussing wages and working conditions with coworkers (even if the employer would prefer they didn't); complaining collectively to management about working conditions; discussing working conditions on social media with coworkers; engaging in work stoppages (including strikes); and seeking help from a coworker when being questioned by management about possible disciplinary action (known as Weingarten rights for unionized employees, with some extension to non-union settings under certain circumstances). Employees do not need union representation to have NLRA protections—the vast majority of NLRB charges involve non-union workplaces. The Act does not protect individual complaints unconnected to group concerns, profoundly disloyal or malicious conduct, or activities that lose protection due to egregious misconduct. Wendy Sellers explains the scope and limits of NLRA protections in her Aurora Training Advantage webinar, helping HR professionals understand exactly what employee conduct must be protected versus what can be legitimately restricted.

A common misconception among HR professionals is that NLRB rules and NLRA protections apply primarily to unionized workplaces. In reality, the NLRA covers most private-sector employees regardless of union status—and the NLRB's review of workplace policies applies equally to union-free employers. The specific context differs: in unionized settings, the NLRB focuses heavily on collective bargaining obligations, unfair labor practices during contract negotiations, and the duty to bargain over mandatory subjects of bargaining. In non-union settings, the NLRB's primary focus is on whether employer policies and practices have a chilling effect on employees' Section 7 rights, including organizing rights. For union employers, handbook provisions interact with collective bargaining agreement language—conflicts between handbook rules and CBA provisions must be resolved, and unions have the right to bargain over discipline for policy violations. For non-union employers, the main risk areas are handbook policies that restrict concerted activity, discipline imposed for protected activity (like wage discussions), and surveillance or interference with employees' organizing efforts. Both union and non-union employers must provide employees with Weingarten rights in unionized settings; the applicability in non-union settings has varied with Board composition. Wendy Sellers addresses both union and non-union dimensions of NLRB compliance in her Aurora Training Advantage webinar, providing guidance relevant to HR professionals across all types of workplaces.