|July 17, 2012|
Previously published on July 13, 2012
Since federal courts have stymied the National Labor Relations Board's (Board) attempts at sweeping rule changes, it has sought to implement progressive change on a case-by-case basis. Last week, the Board took another step in this direction when it issued a decision concerning the rules that apply to an employer's policy restricting off-duty employee access to its facilities. This ruling applies to both union and non-union employers.
In Soxdexo America LLC, 358 NLRB No. 79, the Board found that an employer's off-duty employee access policy, as well as its application of that policy to certain employees, violated the National Labor Relations Act. The employer's rule stated, "Off-duty employees are not allowed to enter or re-enter the interior of the hospital or any other work area outside the hospital except to visit a patient, receive medical treatment or to conduct hospital-related business." The policy defined "hospital-related business" as "the employee's normal duties or duties as specifically directed by management." The employer occasionally allowed an off-duty employee to enter the facility to pick up a paycheck, but when some off-duty employees entered the facility for non-work related reasons other than visiting patients or receiving medical care, they were disciplined.
The Board found that the "hospital business" exception to the access rule violated the Act. The Board based its decision on Tri-County Medical Center, 222 NLRB 1089 (1976), which set the standard for evaluating rules for off-duty employee access. Under Tri-County, an employer's rule barring off-duty employee access to a facility is valid only if it (1) limits access solely to the interior of the facility, (2) is clearly disseminated to all employees, and (3) applies to off-duty access for all purposes, not just for union activity. In Sodexo, the Board has found the employer's rule violated the third part of this test because it allowed the employer "unlimited discretion to decide when and why employees may access the facility" and "does not uniformly prohibit access to off-duty employees seeking entry to the property for any purpose." The Board, however, did find permissible the employer's other exceptions allowing off-duty employees to enter the hospital to visit a patient or receive medical treatment, finding that these purposes for entering the hospital were unrelated to their employment and their access was granted or denied on the same bases as those applied to the public.
Member Hayes dissented, stating, "[T]he end result of the majority's holding is that a hospital cannot maintain a valid off-duty access rule if it also allows employees to engage in innocuous activities such as picking up paychecks, completing employment-related paperwork or filling out patient information. This was undoubtedly not a scenario intended by the Board in Tri-County." The majority countered this argument, by stating that, whether or not innocuous, the Act protects Section 7 activity.
In light of this decision, employers with off-duty employee access policies should examine those policies carefully to ensure they are narrowly tailored and compliant with the Board's Tri-County requirements. At bottom, even after the Sodexo decision, an employer can prohibit off-duty employees from accessing the facility as long as they are prohibited from doing so for any reason other than those applicable to the general public and, only then, if they require the employees to access the facility in the same manner as the public. Consistent enforcement and application of such a policy is vital. The Sodexho decision demonstrates that allowing off-duty employees to enter the facility for seemingly benign reasons—like picking up a paycheck or filling out paperwork—can require an employer to permit off-duty employees access to the facility for organizing purposes.