Could Barring Former Employees From Your Premises Lead To A Lawsuit?

by Fisher Phillips
Contact

Fisher Phillips

Hospitality employers open to the general public should be aware of a recent decision by the National Labor Relations Board (NLRB) with implications across the industry. In a 2-to-1 decision, the NLRB ruled that a hotel and casino unlawfully retaliated against a former employee by barring her from its premises after she filed a suit for unpaid wages (MEI-GSR Holdings, LLC d/b/a Grand Sierra Resort & Casino/HG Staffing). Following this decision, employers should think twice before limiting access to former employees because of a pending lawsuit, claim, or charge.

Former Employee Barred From Premises After Lawsuit

The Grand Sierra Resort & Casino in Reno, Nevada is a facility with restaurants, lounges, clubs, bars, a casino, and performance venues, all open to the general public. Tiffany Sargent was employed there briefly in December 2012 as a beverage supervisor. On June 21, 2013, she filed a collective and class action against the resort for unpaid wages. 

In January 2014, her boyfriend began working at the Lex Nightclub, one of the resort’s facilities. Sargent visited the nightclub and attended other events at the resort on various occasions between the end of her employment and July 2014. The resort even had a long-standing policy allowing former employees to access the facilities and attend social functions. 

However, in early July 2014, Sargent attempted to attend an event at the Lex Nightclub but the resort denied her access. On July 25, 2014, a representative of the resort sent a letter to Sargent’s legal counsel stating that, “in light of the ongoing litigation,” the resort was invoking the Nevada trespass statute and revoking any permission to enter the resort that she might have been granted previously.  

Labor Board Finds Retaliation

Sargent filed unfair labor practice charges against the resort in connection with the denial of access and trespass warning. She claimed the resort’s actions violated Section 8(a)(1) of the National Labor Relations Act (NLRA) which makes it an unfair labor practice “to interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7” of the Act. Section 7 guarantees employees “the right to self-organization, to form, join or assist in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” In May 2015, an administrative law judge found against the resort on both counts, and the case wound its way up to the Labor Board. 

In a 2-1 decision issued late May 2017, the Board held that the resort clearly violated Section 8 by retaliating against a former employee for exercising her rights under Section 7 when she filed a legal action relating to her workplace. The Board also found that the resort’s exclusion of Sargent would reasonably tend to chill current employees from exercising their Section 7 rights. 

The reasoning behind the Board’s ruling is useful for a broader discussion about the scope of a property’s ability to exclude former employees from their premises. The Board was not concerned that the decision risked compromising the legitimate business interests of the resort. If an employer has legitimate concerns about conflict in the workplace, the Board stated, nothing in Section 7 would prevent the employer from continuing to apply lawful, uniformly enforced rules to protect the safety of its workplace and the continuity of its operations. However, nothing like that existed in Sargent’s situation, and the Board found no legitimate justification for a ban from the premises.    

The Board further limited its holding by stating that nothing in Section 7 would prevent an employer from directing its managers and supervisors not to discuss the lawsuit with the former employee. Finally, the Board pushed back against the idea that this ruling would create a “per se violation of the NLRA whenever any former employee pursuing a non-NLRA employment claim with one or more other employees is denied access to the employer’s private property.” The Board responded that, under the “unusual facts of this case,” the resort could not bar Sargent from its facility, which was open to the general public, and to which the resort had granted routine and unfettered access to members of the public and former employees alike. This reasoning is a good reminder that all employers must take care that their policies are applied in a non-retaliatory and nondiscriminatory manner.

Three-Step Plan To Avoid A Similar Fate

The Board’s decision applies broadly to hotels, restaurants, retail establishments, and other facilities open to the general public. Businesses that fall into any of these categories will want to apply a simple three-step plan to avoid the same fate as the Grand Sierra Resort.

  1. Take Retaliation Claims Seriously
    Many hospitality employers have a policy or practice similar to the one at issue here, allowing former employees to continue to access their premises for social or other non-work-related purposes. Once an employee engages in protected activity, it is even more crucial that you enforce such policies uniformly. Protected activity, for example, would include filing a wage and hour or discrimination claim. More broadly, protected activity also includes an employee’s complaint about workplace conditions or refusing to engage in illegal conduct. Before taking adverse action against an employee or former employee who has engaged in protected activity, you must carefully consider all available information, including the specific reasons for the decision.   
  2. Be Sure To Maintain Updated Company Policies
    This case also highlights the importance of well-crafted employer policies. Here, the Grand Sierra Resort could have benefitted from a policy that highlighted the employer’s right to restrict access to its premises only in the interest of employee safety and continuity of operations. In addition, all hospitality employers should regularly update their employment policies, including those against harassment, discrimination, and retaliation. 
  3. Consistently Train Managers
    The Board’s finding in this case should remind all employers that the inconsistent application of policies to employees (both current and former) who engage in protected activity is a breeding ground for retaliation claims and findings of unfair practices by the NLRB. Bear in mind, even with updated policies, managers and human resource professionals must be trained to spot issues related to retaliation, and then to handle such situations in a consistent manner. This includes handling visits by former employees or employees who are currently in litigation with the company.

Train your managers to take note of such visits and to look for evidence of disruptive behavior, which could support a decision on your part to legitimately bar a former employee from your premises. Moreover, managers must refrain from discussing the lawsuit or claims, so training them on this principle is also important.

Conclusion

Findings of retaliation by the NLRB (or a civil court) often arise based on circumstances and risks that an employer may not even realize exist. Therefore, any adverse action relating to employees should be reviewed on a case-by-case basis, taking into account all available information, and in consultation with your Fisher Phillips attorney. Though barring a former employee from company property may seem like a perfectly legitimate decision, this NLRB ruling proves that sometimes things are not always what they seem.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Fisher Phillips | Attorney Advertising

Written by:

Fisher Phillips
Contact
more
less

Fisher Phillips on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.