Many employers have policies that prohibit employees from hanging around the facility before or after working hours. Often, these policies are adopted as a mechanism for ensuring security of the facility, providing a distraction-free workplace, and preventing employees from working off the clock.
As innocuous as off-duty access policies may seem, the National Labor Relations Board (the “NLRB”) continues to target employers who maintain and enforce policies which, in its view, stifle an employee’s right to engage in protected, concerted activity under the National Labor Relations Act (the “NLRA”) (typically referred to as “Section 7 rights”). Simply put, an employer cannot implement an off-duty no access rule that limits an employee’s right to engage in union activity. This applies to union and non-union employers alike.
For nearly 40 years, the NLRB has maintained the same three-part test to determine the legality of off-duty employee access rules. The purpose of the test, originally articulated by the NLRB in Tri-County Medical Center, 222 NLRB 1089 (1976), is to balance the property interests of an employer against the employees’ Section 7 rights. The NLRB will find an off-duty employee access policy lawful only if it:
- limits access solely with respect to the interior of the facility and other working areas;
- is clearly disseminated to all employees; and
- applies to off-duty employees seeking access to the facility for any purpose and not just to those engaging in union activities.
A series of recent decisions by the NLRB interpreting the third element of the Tri-County Medical test further demonstrates the substantial limitations placed on employers for controlling off-duty employee access to the workplace.
In St. John’s Health Center, 357 NLRB No. 170 (2011), the NLRB found that a healthcare provider violated the NLRA by implementing a rule that limited off-duty employee access to the workplace, except “to attend Health center sponsored events, such as retirement parties and baby showers.” The Board interpreted this policy to mean “[i]n effect, the [employer] is telling its employees, you may not enter the premises after your shift except when we say you can.”
Similarly, in Sodexo America LLC, 358 NLRB No. 79 (2012), the NLRB considered a hospital’s rule that prohibited both its own off-duty employees and its contractors’ off-duty employees from entering or reentering the interior of the hospital or any other work area outside the hospital, but provided for three exceptions: (1) to visit a patient, (2) to receive medical treatment, and (3) to conduct hospital-related business.
The Board concluded that the hospital’s first two exceptions (which permitted off-duty access by employees for purposes of visiting a patient or receiving medical treatment) did not violate the NLRA because access pursuant to these exceptions was unrelated to the employees’ employment and because that access was sought as members of the public rather than as employees.
Notwithstanding, the NLRB concluded that hospital’s third exception to its prohibition against off-duty access for “hospital related business” was unlawful because it essentially allowed the employer “free rein to set the terms of off-duty employee access.”
On November 19, 2014, following the U.S. Supreme Court’s Noel Canning decision, which effectively vacated the 2012 Sodexo opinion, a 3-member Board reconsidered that decision. This time, the Board “reversed” a portion of its 2012 opinion and instead held that the hospital’s policy exception for conducting “hospital-related business” was lawful.
Crucial to its analysis was the fact that the hospital had narrowly and expressly defined “hospital-related business” as “the pursuit of the employee’s normal duties or duties as specifically directed by management”. In other words, the NLRB concluded that the provision was not really an exception to the policy but a clarification that employees who were not working their regular shifts but were nevertheless performing their duties as employees under the direction of management could access the facility.
The NLRB found that although these employees would be “off duty” (i.e. not working their regular shifts) by the policy’s definition, they are “on duty” under the term’s ordinary meaning. Thus, the Board concluded that provision allowing access for hospital-related business does not violate the Tri-County Medical third element that a valid no-access rule must apply to off-duty access for all purposes.
The Board majority distinguished the lawful Sodexo policy from one found to be unlawful in St. John’s Health Center, which allowed access for “[h]ealth center sponsored events, such as retirement parties and baby showers,” because there was no indication that employees would be paid or considered to be working during these events.
Finding a coherent takeaway from these recent Board decisions is admittedly a challenge. The rule in St. John’s Health Center, gave no indication that employees would be paid or considered to be working during these company-sponsored events. Because of this, the Board apparently concluded that this in effect gave the employer unlimited discretion to permit off-duty employee access simply by sponsoring an event. The off-duty “exception” in the Sodexo case, however, covered only employees who would understand themselves to be “on duty”. In short, it seems the lawfulness of employer off-duty access policies will hinge on the amount of discretion an employer has in determining when an employee is “on duty” and thus; permitted to access the facility.
Despite the ongoing confusion in the NLRB’s application of the Tri-County Medical test and seemingly contradictory opinions concerning this rule, employers should review their current off-duty access policies and eliminate, to the extent possible, the use of employer discretion in granting employees off-duty access, including any exceptions for “employer-sponsored” events and “employer-approved” purposes.