Employers who maintain lawful policies prohibiting employees from accessing the employer’s facilities when they are off-duty must still be careful to avoid a charge of discriminatory application of those policies -- and they may be surprised to find out what kinds of activities could cross the line.  That is the lesson of a recent decision issued by the National Labor Relations Board, which applies to employers regardless of whether their employees are unionized.   

In Marina Del Rey Hospital, 363 NLRB No. 22 (Oct. 22, 2015), Marina Del Rey Hospital was charged with violating the National Labor Relations Act by (1) maintaining an unlawful access policy for off-duty employees and (2) enforcing the policy in a discriminatory manner.  

The policy stated as follows:

• Off-duty employees may access the Hospital only as expressly authorized by this policy. An off-duty employee is any employee who has completed or not yet commenced his/her shift.

• An off-duty employee is not allowed to enter or reenter the interior of the Hospital or any Hospital work area, except to visit a patient, receive medical treatment, or conduct hospital-related business. “Hospital related-business” is defined as the pursuit of an employee’s normal duties or duties as specifically directed by management.
• An off-duty employee may have access to nonworking, exterior areas of the Hospital, including exterior building entry and exit areas and parking lots.
• Any employee who violates this Policy will be subject to disciplinary action up to and including termination.

In evaluating the policy as written, the Board cited its decision in Tri-County Medical Center, 222 NLRB 1089 (1976), which established the test for the validity of an off-duty employee access rule.  Under Tri-County, an employer’s rule barring off-duty employee access to its facility is lawful only if:

1. it is limited to the interior of the facility,
2. it is clearly disseminated to all employees, and
3. it applies to off-duty access for all purposes, not just for union activity.  

Noting that a recent case (Sodexo America LLC, 361 NLRB No. 97 (2014)) involved a virtually identical policy, which was ultimately held to be lawful under Tri-County, the Board held that the Hospital’s policy likewise was facially lawful under that standard.  The first two prongs of the Tri-County test were easily met by the Hospital’s policy, and the Board also held that allowing off-duty employees access to the Hospital as patients or patient visitors (i.e., as members of the public) did not violate the third prong of the standard.  Restricting access to employees on “hospital-related business” as defined in the policy was also permissible under the third prong of Tri-County because that purported “exception” to the rule was in reality no exception at all, but rather a clarification that the rule did not apply to employees who were not on their regular shift, but were nonetheless performing “duties” at the direction of management. Apart from those “exceptions,” the policy barred access for any other purpose and was therefore lawful on its face.

But while the policy itself was lawful, the Board further held that the Hospital violated the NLRA by applying the policy in a discriminatory manner.  On at least two occasions, the Hospital had applied the off-duty access policy to prevent or curtail off-duty employees from meeting with union representatives in the hospital cafeteria.  At the same time, however, the Hospital permitted off-duty employees to enter its facility for a variety of reasons unrelated to union activity, including:

• picking up paystubs
• submitting scheduling requests
• applying for a transfer
• attending retirement parties and wedding or baby showers

Thus, according to the Board, the policy was applied in a disparate manner that allowed off-duty access for certain reasons but discriminated on the basis of union activity, in violation of the Act.  

In dissent, Board Member Miscimarra took issue with the Board’s interpretation of the Tri-County standard as requiring that a policy must bar all off-duty access, without exception, in order to be lawful.  In his view, “reasonable exceptions” -- which he did not define -- should not invalidate an off-duty access rule, as long as those exceptions do not single union activity or other protected concerted activity.  

What should an employer do?

Member Miscimarra’s dissent highlights the quandary confronting employers who have off-duty access rules by the facts and majority holding in Marina Del Rey Hospital.  To be valid on its face, the rule must comply with Tri-County’s strict requirement that the rule bars off-duty access for all purposes, seemingly without exception.  Moreover, it is not enough to apply the rule to prohibit off-duty access for nearly any reason (including union-related activities) while still allowing a few exceptions for indisputably work-related activities like the ones at issue in Marina Del Rey Hospital.  Rather, it appears that any disparate application of a valid access rule could result in a discriminatory application violation. Yet employers may have legitimate business and operational reasons for allowing employees limited off-duty access to their facilities while still maintaining a general prohibition on off-duty access for safety and security reasons.  Reconciling these needs with the Board’s treatment of this issue in Marina Del Rey Hospital will be challenging.  At a minimum, employers should do the following:

• Review their existing access rules to ensure that they are lawful as written.
• Assess how those rules are being enforced -- is all off-duty access being prohibited, or are there exceptions in practice if not in the policy?
• If employees are being permitted off-duty access for certain activities, determine whether those activities are necessary, and/or whether they could be performed while on-duty without detrimental operational impact, or in a different manner that would not require physical access.  For example, using the facts in Marina Del Rey Hospital:
  • Could the employer distribute paystubs electronically, eliminating any need for employees to access the facility for that purpose while off-duty?  
  • Could the employer require transfer applications or scheduling requests to be submitted only during regular working time?  
  • Should there be a rule requiring that social events (showers, retirement parties, etc.) be held off premises?

Clearly, this analysis will vary depending on the particular needs and circumstances of each employer.  Consulting with legal counsel regarding the validity of your written access policy and its application is advisable.