Wednesday, November 4, 2015

NLRB provides employers a roadmap to a legally compliant off-duty access policy

Can an employer lawfully limit non-employees’ access to its facility? On its face, such a question might seem silly. After all, an employer should be able to control its property, right? What about access by union organizers? Does this wrinkle change the answer?

In Marina Del Rey Hosp. (10/22/15) [pdf], the National Labor Relations Board considered the following access policy:

Off-duty employees may access the Hospital only as expressly authorized by this policy. An off-duty employee is any employee who has completed or not yet commenced his/her shift.

An off-duty employee is not allowed to enter or re-enter the interior of the Hospital or any Hospital work area, except to visit a patient, receive medical treatment, or conduct hospital-related business. “Hospital related-business” is defined as the pursuit of an employee’s normal duties or duties as specifically directed by management.

An off-duty employee may have access to non-working, exterior areas of the Hospital, including exterior building entry and exit areas and parking lots.

Any employee who violates this Policy will be subject to disciplinary action up to and including termination.

Did it pass NLRB-muster?

According to the NLRB,“an employer’s rule barring off-duty employee access to its facility is lawful only if it is limited to the interior of the facility, is clearly disseminated to all employees, and applies to off-duty access for all purposes, not just for union activity.” Because this policy checked each of these boxes, it passed muster under the NLRA.

Of course, having a lawful policy, and lawfully applying that policy, are completely different.

However, we agree with the judge that the Respondent’s policy was unlawfully applied in a manner that discriminated on the basis of union activity. The record reveals that the Respondent permitted off-duty employees to enter the Hospital for a variety of reasons unrelated to union activity (such as picking up paystubs, submit-ting scheduling requests, applying for a transfer, and attending social events such as retirement parties and wedding or baby showers).  But on at least two occasions, the Respondent applied its off-duty access policy to prevent or curtail off-duty employees from meeting with union representatives in the hospital cafeteria. This evidence supports a finding that the Respondent applied its off-duty access rule in a disparate manner, in violation of Section 8(a)(1).

What lessons can employers take away from this decision?

  1. If you’re looking to draft an employee off-duty access policy, you could do a whole lot worse than one the NLRB has already blessed as kosher.
  2. Once you implement that policy, make sure you do so fairly, consistently, and non-discriminatorily. Otherwise, your lawful policy might still draw the NLRB’s ire.

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