[authors: David R. Broderdorf, Joseph E. Santucci, Jr., Jonathan C. Fritts, Doreen S. Davis, and Charles I. Cohen]
Board's recent decision in J.W. Marriott makes it more difficult for employers to control off-duty employee access to the workplace.
Over the past year, the National Labor Relations Board (NLRB or Board) has used the precedent it set in Tri-County Medical Center to expand the rights of off-duty employees to enter the interior of employer facilities. Three recent decisions, culminating in the September 28 J.W. Marriott decision, now make it extremely difficult for employers to control off-duty employee access to the workplace.
For almost four decades, the NLRB has operated under the Tri-County standard for how an employer lawfully may restrict access to its property by off-duty employees. In this case, the NLRB established a three-part test for whether off-duty access restrictions pass National Labor Relations Act (NLRA or Act) standards. For a rule to be held valid under the Tri-County test, it must (1) limit access solely with respect to the interior of the plant and other working areas; (2) be clearly disseminated to all employees; and (3) apply to off-duty employees seeking access to the plant for any purpose and not just those employees engaging in union activity. Tri-County, 222 N.L.R.B. at 1089.
The Board applied Tri-County in two recent decisions to find that policies barring off-duty employees' access to an employer's facility, except for employer-sponsored events or for employer-related business, were unlawful and violated the Act. In J.W. Marriott, the Board expanded on its two earlier decisions to find that the following policy language was, in part, overbroad and in violation of Section 8(a)(1):
Occasionally, circumstances may arise when you are permitted to return to interior areas of the hotel after your work shift is over or on your days off. On these occasions, you must obtain prior approval from your manager. Failure to obtain prior approval may be considered a violation of Company policy and may result in disciplinary action. This policy does not apply to parking areas or other outside nonworking areas.
J.W. Marriott, slip op. at 1.
The traditional view of Tri-County is that the test's third prong focused on whether access rules were discriminatory toward activities protected under Section 7. Thus under this interpretation, access rules that allowed off-duty employees to return to the workplace for "work related" issues (e.g., to pick up a paycheck or to attend an evening event) did not violate the NLRA. The policy language in J.W. Marriott clearly did not discriminate against union activity, so under prior applications of the Tri-County test, the clause should have been considered lawful as a valid exercise of an employer's right to control the interior of its facilities with respect to off-duty employees. The NLRB's ruling in J.W. Marriott, however, changes the law in this regard.
The Board majority, consisting of Chairman Mark Pearce and Member Sharon Block, found the clause unlawful because it "requires employees to secure managerial approval, giving managers absolute discretion to grant or deny access for any reason, including to discriminate against or discourage Section 7 activity." Id. at 2. Thus, because the policy allows for the mere possibility of discrimination at some future point, with respect to off-duty employee access, it is presently overbroad and in violation of Section 8(a)(1). On this issue, the Board majority reasoned that the clause "would reasonably lead employees to believe that their Section 7 activity in the interior areas of the hotel is prohibited without prior managerial approval." Id.
Member Brian Hayes, the lone Republican on the J.W. Marriott panel, dissented, challenging the Board majority's interpretation as an all-or-nothing approach to the third prong of Tri-County. This means that an employer must ban all forms of off-duty employee access to the workplace, regardless of whether the policy singles out activity related to Section 7 or the employer actually discriminates against Section 7 activity. Member Hayes argued that Tri-County simply "does not require a blanket prohibition on all off-duty access." Id. at 5. Pointedly, the dissent references a situation where an off-duty employee forgets his or her medication at work and seeks to reenter to obtain this needed medication. Based on the majority's opinion, if that employer allows him or her to reenter "for any purpose," that such an allowance automatically opens the door to all off-duty employees reentering the facility to engage in any activity, whether related to Section 7 or not. Although the Board's decision recognized the possibility of "special circumstances" whereby an employer could allow reentry for some isolated purposes, Member Hayes found this concept "illusory and of no practical benefit to employers seeking guidance in this area." Id. at 6.
Following Saint John's, Sodexo, and now J.W. Marriott, employers that seek to prohibit access by off-duty employees to the workplace, but that allow for any exception to that policy, risk having the policy found unlawful under Section 8(a)(1) of the NLRA. Moreover, off-duty access policies that require managerial permission for reentry will similarly violate Section 8(a)(1) absent special undefined circumstances. Employers must reassess their off-duty access rules—as they have with many other workplace policies over the last several years—if they wish to lawfully control off-duty access. Failure to ban reentry for all purposes will open the door to challenge should an employee or union file an unfair labor practice charge.
. Tri-County Med. Ctr., Inc., 222 N.L.R.B. 1089 (1976), available here.
. Marriott Int'l, Inc. (J.W. Marriott), 359 N.L.R.B. No. 8 (Sept. 28, 2012), available here.
. Sodexo Am. LLC, 357 N.L.R.B. No. 79 (July 3, 2012), available here; Saint John's Health Ctr., 357 N.L.R.B. No. 170 (Dec. 30, 2011), available here.