Ban them All or Ban No One: The NLRB at it Again

by Michael Haberman on November 6, 2012 · 1 comment

 

The NLRB requires you to ban all off-duty employees or allow all of them.

I have written many times on the hyperactive, hyper pro-union decisions the NLRB has made so it will come as no surprise that I am writing about this again. Many companies have policies that bar employees from coming back into the workplace after their work time is finished. This can be for a number of reasons, such as disrupting the work of others or confusion for customers. Typically the policy would be that the employee would need to request permission from a manager to come back to the workplace. Well a recent decision says that is illegal. They are saying ban them all or ban no one.

 What is the fuss about?

According to Fisher & Phillips attorneys, Matthew Korn and Reyburn Lominack, the NLRB said “…the policy unlawfully interfered with the right of employees to engage in protected concerted activity.” Ah… good ol’ Section 7 rights. The case dealt with a J.W. Marriott in Los Angeles which had a policy prohibiting off-duty employees from accessing interior areas of the hotel without prior approval of management. According to the attorneys “The Board found that because the hotel’s policy did not uniformly prohibit off-duty employee access to the property for any and all reasons, it was unlawful to prohibit access for only some reasons, particularly where approval of those reasons was subject to management’s discretion.” Korn and Lominack further conclude “In other words, under the Board’s rationale, the policy must either allow all off-duty employees to access the property, or it must forbid all off-duty employees from accessing the property. Because the hotel’s access policy gave management discretion to decide on what grounds an off-duty employee could return to the property, it was unlawful.”

Do you have such a policy?

If you have a policy that allows employees to come back into the workplace for things such as birthday parties and retirement parties but everything else requires management approval then you are violating the law. Such a blanket prohibition infringes on the employees Section 7 rights to come in and campaign. So if you want to keep off-duty employees out of the workplace you have to ban them for EVERYTHING. No more asking the boss if you can come in.

In fairness the Board’s decision did allow employers to choose “special circumstances” in which employees might be allowed back in the workplace, but they did not provide any guidance or definition of those special circumstances. As Korn and Lominack say they are “…forcing employers to act at their peril with respect to prohibiting off-duty employee access.”

What is an employer to do?

Our attorney friends suggest there are three things that an employer can do:

  1. Be very cautious in including ANY exceptions to your access policy;
  2. Make sure your policy does NOT permit managers discretion in making decisions on who can have access and under what circumstances;
  3. Make sure that your access policy does NOT limit access for only company events or business activities.

So pull out that policy manual and review what you have written. Remember your policy will probably be illegal by the definition of the NLRB regardless of whether you have ever enforced it or not.

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