If they appear to prohibit protected, concerted (including union) activities, off-duty employee access rules are unlawful
The National Labor Relations Board (“Board”) ruled in a recent case, Sodexo America LLC, 358 NLRB No. 79, that an employer violated the National Labor Relations Act (“NLRA”) by implementing a rule limiting access to the workplace for employees who were off-duty.
The Board has historically determined that an off-duty access policy is lawful so long as the policy: (1) limits access solely to the interior of the facility and other working areas; (2) is clearly disseminated to all employees; and (3) applies to off-duty employees seeking access to the facility for any purpose and not just to those engaging in union activities.
The Board applies this 3-part test to balance the property interests of an employer against the right of employees to engage in protected, concerted activity under Section 7 of the NLRA.
In Sodexo, the employer’s, a hospital, off-duty access policy provided [emphasis added]:
Off-duty employees are not allowed to enter or re-enter the interior of the Hospital or any other work area outside the Hospital except to visit a patient, receive medical treatment or to conduct hospital-related business.
An off-duty employee is defined as an employee who has completed his/her assigned shift.
Hospital-related business is defined as the pursuit of the employee’s normal duties or duties as specifically directed by management.
Any employee who violates this policy will be subject to disciplinary action.
The Board determined the employer’s “hospital related business” exception, was overly broad. In other words, this exception could be read by workers as prohibiting their ability to engage in union activities, or other activities regarding coming together to discuss working conditions, which is not lawful.
The Board dismissed the employer’s argument that the policy only applied to employees who were at the hospital to work an extra shift. Instead, the Board decided the policy violated the NLRA because it gave the employer “free rein to set the terms of off-duty employee access.”
It is important, however, to note that the Board also indicated that exceptions to off-duty access rules permitting off-duty employees to visit patients or seek medical care would not automatically violate the third prong of the test.
The bottom line is that employers may not create rules restricting off-duty employees’ access to their work place if those rules would cause a reasonable person to believe she is not free to enter the premises to conduct union, or other protected, concerted, activities.