NLRB News: Off-Duty Employee Access to Workplace Policy Unlawful

A recent National Labor Relations Board (“Board”) decision restricting a company's ability to prohibit off-duty employees from being at the worksite is yet the latest example of how the Board is moving quickly to strike down common, everyday policies and further restrain companies in areas once held inviolate.

In the decision, the Board found that a nursing home's policy requiring off-duty employees to obtain supervisory permission before entering company property violated the National Labor Relations Act (NLRA). The Board reasoned that, as written, the rule provided supervisors with unlimited discretion to determine permissible access for off-duty employees, and as such, this discretion could be unlawfully used to deny workers from remaining (or returning) to work to engage in union-organizing or other protected activities.

Acknowledging that companies do have enforceable property rights, however, the Board specifically ruled that companies may validly restrict off-duty access as long as the rule is:

• Applicable only to the interior of the facility and other working areas
• Clearly disseminated to all employees
• Applicable to all off-duty employees seeking access for any purpose

By providing an example of what policy would have been enforceable, the Board continues to signal that only detailed policies limiting discretion and providing clear notice of what is, or is not, permitted, will have a chance of surviving Board scrutiny, while broad, general policies that could be interpreted in ways that could be unlawful, will be struck down.

We suggest that you review your organization's policies to ensure they comply with the Board's rapid expansion into non-union workplaces.