Do you limit off-hour access to the workplace to your employees? Many employers do, and with good reasons, such as security issues, liability for injuries, property damage, minimizing disruption to name a few. Still, by now it may not surprise you to know that your right as an employer to control employee access to the workplace not only has its limits, but may also be under attack by the NLRB. Boy that NLRB really gets around! What’s the issue now? Can employees just come and go as they wish and do whatever they want, leaving you, the employer, powerless to do anything? Thankfully no, but you do have to be careful. Join The Emplawyerologist after the jump to learn more…
The NLRB’s leading decision this issue first came to the forefront in the Tri-County Medical Center case in 1976. The NLRB held that policies limiting after-hours access to the workplace are lawful as long as they:
- limit access solely to the interior of the facility and working areas: The restrictions therefore cannot include the parking lot or other areas that are outside the building;
- are clearly disseminated to all employees; This is fairly self-explanatory and has not tended to be a problem area for employers;
- applies to off-duty employees seeking access to the facility for any purpose, and not just to those engaging in union activities. This requirement is the one that the tends to trip up most employers–and the one that the NLRB most often uses to strike down these types of policies. Naturally then, we will focus mostly on this one.
Before we get into the actual developments over the last 38 years, how and why does the NLRB even get involved in this issue in the first place? If you have been following The Emplawyerologist the last few weeks, (specifically here, here, here and here) you may have already guessed the answer. Sorry to sound like a broken record, but it all comes back to NLRA Section 7, which allows all employees to engage in concerted activity for mutual aid and protection and to form, join, assist organize or communicate about matters relating to labor unions or working conditions. That is why the NLRB can get involved even in non-unionized workplaces. Whenever the NLRB finds even a potential interference with Section 7, it becomes an unfair labor practice under NLRA Section 8(a)(1).
Workplace access after hours did not stop raising questions in 1976. Cases in the last three years have demonstrated that the issue is alive and well. Let’s have a good look and gain as much understanding as we can so that you can hopefully avoid these pitfalls.
One case in 2012 involved the University of Southern California Hospital’s policy (Sodexo America LLC 358 NLRB No. 79 July 3, 2012), which provided that:
- Off-duty employees could not 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 conduct hospital-related business;
- Employees who completed their assigned shifts were deemed to be “off-duty”;
- Hospital related business consisted of pursuit of an employee’s normal duties or those duties specifically directed by management.
- Employees violating the policy were subject to disciplinary action.
The majority in striking down this policy, relied on another recent ruling, Saint John’s Health Center 357 NLRB 170 (2011), which held that a policy barring off-duty access except for employer-sponsored events violated the NLRA, because “the Respondent is telling its employees, you may not enter the premises after your shift except when we say you can” and found such a rule inconsistent with Tri County. The NLRB in Sodexo found the “hospital-related business” exception to be similar in that it provided management with “unfettered discretion” to decide who could and could not enter the facility after hours, rather than uniformly prohibiting access to off-duty employees seeking entry for any purpose. (Thankfully, the NLRB apparently does allow for exceptions for visiting patients or seeking medical treatments, however.)
Fast forward to May 1, 2014 and Piedmont Gardens 360 NLRB No. 100. The NLRB struck down a nursing home/retirement community’s policy prohibiting employees from remaining on its premises after their shift “unless previously authorized by their supervisor”. Based on Sodexo and Saint John’s Health Center, how would Piedmont Gardens not have realized that the exception, which again gave management unfettered discretion as to who could and could not be on premises after their shift, would not pass NLRB muster? Piedmont Gardens argued that because it “in practice” allowed off-duty access for three specific purposes only: a) to pick up a paycheck; b) to attend a scheduled meeting with HR, or c) an early arrival prior to a night shift that its policy was lawful. This would certainly appear to be lawful, because it restrictedall other non-work visits, and not just those related to union activity. So why did the employer lose? Those exceptions though they may have been implemented in practice, were not included in the policy itself, which merely contained the overbroad “unless authorized by management” exception. Moreover, the record itself lacked proof that the employer implemented those narrow exceptions. Therefore, the NLRB reasoned it “need not pass” on whether the policy would have been lawful had those exceptions been clearly included in the policy. It would have been very interesting to see how this case would have turned out if they had been…
So, how do you has an employer protect your property interest in limiting off-duty employees’ access to the workplace without running afoul of the NLRA? First, make sure you have a clear, written policy that you disseminate to all your employees. Make sure your policy is only as broad as is necessary to protect your needs. Your policy can restrict access to the inside of your building(s) and to working areas, but not to other areas that would otherwise be accessible to the public. Your policy must also apply to all employees who are seeking access for any purpose (though apparently some exceptions like allowing hospital employees access to a hospital to visit patients or get medical treatment are lawful). Finally, you should, of course, make sure to have competent employment counsel review your policy, not just now, but periodically, because laws have been known to change over time.
While we could go on for years about the NLRB, you will be happy to know that we won’t! If you have employees who work from home or you considering work-from-home arrangements, join The Emplawyerologist next week where it begins discussion of how to recognize and avoid pitfalls arising out of such arrangements. See you then!
In the meantime, here’s an amusing example of how not to limit workplace access. What might the NLRB say to this?
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
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