NLRB Holds Employers Cannot Bar Off-Duty Employees From Entering Facility If Allowed to Engage in a Variety of Company-Related Business While Off Duty

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In a recent decision, Sodexo America LLC, 358 NLRB No. 79 (July 3, 2012), the NLRB declared that an employer rule prohibiting off-duty employees from coming into the interior of a hospital or onto outside areas of the hospital where work was performed was a violation of Section 7 of the National Labor Relations Act (the Act) because it allowed such employees to enter the hospital to pick up their paychecks or to conduct other hospital-related business.  The NLRB determined that this “mixed message” could be reasonably understood by employees to bar them from entering the employer’s buildings to engage in Section 7 activities, such as soliciting support for a union, while allowing them to come onto company property to engage in activities the employer supported while off duty.
Employers often adopt such rules because they do not want off-duty employees wandering around inside its facilities before or after work or on their off days.  There are numerous legitimate reasons for such a rule.  These reasons include preventing claims that employees were working and not being paid, preventing claims for injuries while on company premises, security, safety, and simply maintaining control of the property.   Additionally, most employers do not want off-duty employees coming back into the plant or office to engage in solicitation activities that could interrupt other employees, whether these be for a charitable cause, a religious mission, or to organize a union.
In this case the rule stated:
Off-duty employees are not allowed to 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 to conduct hospital-related business.
1. An off-duty employee is defined as an employee who has completed his/her assigned shift.
2. Hospital-related business is defined as the pursuit of the employee’s normal duties or duties as specifically directed by management.
3. Any employee who violates this policy will be subject to disciplinary action.
Relying on Tri-County Medical Center, 222 NLRB 1089, 1089 (1976), the NLRB held that an employer’s rule barring off-duty employee access to a facility is valid only if it limits access solely to the interior of the facility, is clearly disseminated to all employees, and applies to off-duty access for all purposes, not just for union activity.
The Board’s Acting General Counsel contended that the Hospital’s no-access policy violated the third prong of this test, because the policy did not deny access for all purposes, but allowed access for visiting patients, receiving care, and conducting hospital-related business.  The NLRB held that the first two exceptions were permissible due to the nature of this employer’s business.  The same would presumably be true of a retail establishment where the employee returned to shop, or a restaurant where the employee returned to eat, while off duty.  However, it found that allowing access only to off-duty employees needing to conduct “hospital related business” was overbroad.  The NLRB was alarmed by the potential it saw in this rule for the employer to allow access for reasons “it approved,” but deny it for union organizational activities.
Therefore, unless the holding is appealed and reversed by a Court of Appeals, any work rule that purports to prevent off-duty employees from entering the interior of a plant or other business cannot make exception for off-duty employees who might need to come into the plant or offices for such purposes as picking up a paycheck, filling out insurance paperwork, dropping off an FMLA form, filing a change of address notice, or, maybe, even to attend a grievance meeting on non-work time.  The decision involves striking yet another common employer practice in order to make sure those desiring to engage in union activity are free to do so, but, for now, is the law of the land. 
A “Compliant” Possible Solution for Employers
In order to control access employers must now bar off-duty employees from all access to outside work areas and the interior of its plant or offices for any purpose.  Recognizing that there are legitimate reasons why an off-duty employee might have to come inside the employer’s buildings or otherwise come on the premises while off-duty, it may be permissible to limit off-duty employee access to a reception area (common to all other visitors) where a member of management or HR could meet them to give or receive whatever it is they are coming to provide or pick up.
Another point to remember is that any such rule must be uniformly enforced, because if it is not enforced against an off-duty employee who wants to come into the building to eat lunch with his co-employee spouse on his day off, it cannot then be used to deny access to another employee who wants to establish a union campaign outpost in the lunch room on his off day.
We will, of course, keep you updated in the event this latest decision is overturned on appeal.  In the meantime, if you have any questions regarding your company property access policies or any other labor or employment law topic, please feel free to contact Bill Trumpeter, or any other member of Miller & Martin’s Labor and Employment law practice group.
The opinions expressed in this bulletin are intended for general guidance only. They are not intended as recommendations for specific situations.  As always, readers should consult a qualified attorney for specific legal guidance.  Should you need assistance from a Miller & Martin attorney, please call 1-800-275-7303.