Meditate and Then Read: Off Duty Policies and the NLRB

As published by SHRM’s We Know Next: my latest article can be found here.

Many employers have rules that prohibit employees from returning to work while they are not on duty.  These rules are designed to keep order but they also have the effect of limiting employee access to engage in union activity while off duty.

The NLRB has long held that a rule barring off-duty employees access to the workplace is valid only if:

  1. It is limited solely to the interior of the facility
  2. It is clearly disseminated to all employees (so it must be in writing)
  3. Is applied to off duty access for all purposes, not just union activity. Tri-County Medical Center, 22 NLRB 1089 (1976).

In addition to the above, the policy must not be implemented in response to union activity. Otherwise, the Board will find anti-union animus.

Last year, the Board applied Tri-County to a case in which employees were called back to Company-sponsored events, such a retirement party or baby shower.  The Board held that the employer’s inviting off duty employees to return to the Company’s premises violated the rule so that it could not be applied to employees returning to the premises to engage in union activity.  Saint Johns’ Health Center, 357 NLRB NO.  170 (2011)

The Board objected to the employer’s reservation of its right to invite employees to return to its property whenever it wanted.  “The employer is telling its employees, you may not enter the premises after your shift except when we say you can.”

The Board obviously ignored the difference between the “employer acting as employer” providing direction to its employees and the employer acting as “traffic cop” in terms of when off duty employees can return to the workplace on their own initiative.  The NLRB’s analysis makes sense to me when applied to the latter but not so when applied to the former.

The message from the Board’s decision:

  1. Do not include a broad reservation of rights unless you want the Board to say you have no rights.
  2. If you want to host a special event, such a holiday or retirement party, consider a local restaurant or other location.  It is not without cost but inviting employees back to your workplace while they are off duty is not without risk either.

Note:  calling “on call” employees into work is not asking them to return off duty. To the contrary, you are asking or requiring that they be on duty.

Last month, the Board decided another case involving off duty employees, Sodexo America LLC, July 2, 2012. The employer in the case is a hospital and it had an off duty policy that included three (3) exceptions:

  1. Visiting a patient
  2. Receiving medical treatment
  3. Conducting hospital-related business

The Board held the first two exceptions did not violate Tri-County.  Critically, in those circumstances, when the employees returned to the workplace in a different capacity, they were treated like all other non-employees. For example, when employees were visitors of patients, they complied with all of the rules which applied to other visitors, such as wearing a badge and having only the same access as non-employee visitors.

However, the Board held the third exception violated the NLRA.  The Board “reasoned” the rule violated the NLRA because it gave the employer “free reign to set the terms of off duty access.” The Board noted in a footnote that even something as “innocuous” as allowing employees to pick up pay checks may render a rule lawful on its face discriminatory in its application.

Again, what does this mean for employers:

  1. Be careful of reserving your rights in the policy or you may end up with no rights
  2. Make sure employees who return to work in a different capacity have no greater rights than non-employees and are subject to the same restrictions as them.  We all know that health care workers and retail workers are in the unions’ cross hairs. I already have discussed health care workers. What would this mean for retail workers? When they shop, they cannot access “employee only” areas for starters!

A difficult case is when an employee asks to return to work to pick up a paycheck.  Does this automatically give employees rights to access the property for other purposes?  The Board might say “Yes,” although hopefully a court reviewing the issue would say “No.” One simple solution is for the employer representative to meet the employee in the exterior of the building, if possible.

There are other difficult issues, such as allowing employees to return to the  premises to share a meal in a non-public cafeteria with family members or friends who also are employees of the company.  For example, a husband and wife work for employer. Wife is working. Husband is off.  Husband returns off duty to have dinner with his wife in the company’s non-public cafeteria. This would appear to violate the Board’s all or nothing  “analysis.”  A victim of the NLRB’s assault on management rights could be family and other relationships.

In these cases, prohibiting such access may avoid the legal risk.  But it may create an employee relations problem which could serve as the catalyst for union activity.

It is policy that the Board’s analysis may apply beyond just off-duty employees. It could have broader implications for Solicitation and Distribution policies where the employer invites 3rd parties onto its property. But I will need to meditate more before I can write about that!

Employers need to evaluate carefully the current decisions by the NLRB recognizing that sometimes the most cautious legal approach is the riskiest in terms of employee relations.