The NLRB has narrowed the circumstances under which an employer may limit off-duty employees’ access to the workplace. Off-duty access policies must balance the rights of employers to control access to their property with employees’ right to communicate with fellow workers at the workplace on their own time regarding the terms and conditions of employment.
More than 35 years ago, the NLRB articulated a three-prong standard for determining if a ban on off-duty access to the workplace is valid. Under that standard, an employer’s prohibition against employees entering the workplace while off-duty is valid if it: (1) limits access only to the interior of the facility; (2) is clearly disseminated to all employees; and (3) applies to off-duty access for any purpose, not just union organizing activity (Tri-County Medical Center, 222 NLRB 1089 (1976)).
Apparently following this standard, a hospital maintained a no-access policy stating that off-duty employees could not enter the interior of the hospital or outside work areas unless: the employee was receiving medical care; the employee was visiting a patient; or the employee was conducting hospital-related business. The hospital defined “hospital-related business’ to include the employee’s “normal duties or duties as specifically directed by management.” The NLRB found this definition overly broad under the third prong of the standard, essentially giving the hospital “free rein to set the terms of off-duty employee access” (Sodexo America LLC, 358 NLRB No. 79 (2012)).
The Board relied on another recent case in which it found a no-access policy invalid under the third prong when it prohibited off-duty employees from entering the premises except for employer-sponsored events, such as retirement parties and baby showers. The employer enforced the rule against an off-duty employee at work to campaign for a union and another employee who came to the facility to retrieve his wallet. The Board found that through this rule, the employer was “telling its employees, you may not enter the premises after your shift except when we say you can” (Saint John’s Health Center, 357 NLRB No. 170 (2011)).
One member of the Board dissented from both Sodexo and Saint John’s, finding the majority’s ruling “unduly restrictive” and criticizing its “all or nothing approach.” In Sodexo, the dissenting member noted that under the Board’s reasoning an employer could not have a valid no-access policy if it allowed employees to enter the workplace to “engage in innocuous activities” such as picking up a paycheck, or completing paperwork
Bottom Line. From social media policies, to employee handbooks, discrimination investigations, and off-duty access to employer property, the NLRB is making its mark on the employment landscape. When drafting and reviewing employee policies, employers should keep the NLRA in mind along with the myriad of other employment laws affecting workplace conduct.
Related article: Watch out—That policy may be an unfair labor practice!
Patricia M. Trainor, J.D., SPHR is Managing Editor of BLR’s human resources and employment law publications. Ms. Trainor has several years of experience representing employers and school districts in labor and employment matters. As an associate at Franczek Sullivan, P.C. in Chicago, she represented employers in state and federal court and before the Illinois Human Rights Commission. Before entering private practice, Ms. Trainor clerked for the Honorable Anthony Scariano at the Illinois Appellate Court. Ms. Trainor received her law degree magna cum laude from Loyola University Law School of Chicago. She has a Masters Degree in Mass Communication from San Diego State University. Additionally, Ms. Trainor is certified as a Senior Professional in Human Resources (SPHR) by the national Human Resources Certification Institute. She is a member of the American Bar Association, the Connecticut Bar Association, and the Illinois Bar Association, and she is admitted to practice in Connecticut and Illinois.
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