Can Non-Employees Be Denied Access to Employers’ Property?
Employers often raise questions on whether labor law requires them to allow non-employees to solicit, hand-bill, demonstrate, etc. on the employers’ property. In recent weeks, these issues have acquired notoriety in the national media, as major employers, such as Walmart, McDonald’s and other fast food chains have confronted mass demonstrations by non-employees. The National Labor Relations Board (NLRB or Board) enforces the labor law (National Labor Relations Act or NLRA) and decides disputes regarding the employers’ right to deny demonstrators access to their property.
As a general proposition, under NLRB law, employers have the right to restrict non-employees’ access to their property so long as:
The restriction is limited to non-employees;
There is a sufficient property interest to maintain a trespass action under state law;
The restriction is applied on a non-discriminatory basis (not simply with respect to labor disputes).
Right to Control the Property
In this area, most of the case law deals with the question of whether the employer had a sufficient property interest to restrict employees’ access to the employer’s property. The employer bears the burden of proof to establish the requisite property interest.
The NLRB has consistently used the term “right to control the property” to mean an exclusive property interest that gives the employer a right to exclude non-employees from the property. The NLRB considers the applicable state law to determine whether the employer can maintain a trespass action with respect to the property in question. The Board, therefore, examines the lease, title, license or other instrument that defines the property interest.