[authors: Neil Goldsmith, Chris Johlie]
In Sodexo America LLC, the National Labor Relations Board (NLRB) recently ruled that USC Hospital’s off-duty access policy violated employees’ Section 7 rights under the National Labor Relations Act (NLRA). The policy prohibited off-duty employees from entering the hospital unless they were visiting a patient, receiving medical treatment, or conducting “hospital-related business,” which the hospital’s handbook defined as “the pursuit of the employee’s normal duties or duties as specifically directed by management.”
The NLRB took issue with the “specifically directed by management” language of the policy, finding that it provided the Hospital with “unlimited discretion to decide when and why employees may access the facility.” The NLRB read the rule on its face as prohibiting employee access for purposes of engaging in protected concerted activity, while permitting access for other reasons as specified by management. It further reasoned that such a policy lacked uniformity in the sense that it did not prohibit off-duty access entirely; rather, it prohibited access only when not “specifically directed by management.” Construing any ambiguities in the policy against the Hospital, the NLRB found that it gave the Hospital “free rein to set the terms of off-duty employee access,” which constituted a violation of Section 8(a)(1) of the NLRA. Dissenting NLRB Member Brian Hayes found the majority’s holding too restrictive, specifically noting that it will limit the Hospital’s right to allow off-duty employee access for “innocuous activities” like collecting paychecks, completing paperwork, and filling out patient information.
This ruling is just the latest example of what is becoming an endless stream of NLRB activity on general employment policies. The NLRB is expanding its territorial reach well beyond labor disputes, looking for violations of employees’ Section 7 rights wherever they may be lurking. The Sodexo decision is also significant for the NLRB’s decision to broadly construe the access policy against the employer, and completely ignore any evidence of purpose or intent behind the rule.
In light of Sodexo, and other recent NLRB decisions involving employment policies like social media and at-will employment, both union and non-union employers should continue to review and update their policies to ensure that they are specific and narrowly tailored to their business needs. As these decisions make clear, employers must comply not only with all applicable employment statutes, but the NLRA as well.