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Can you declare company facilities off-limits for off-duty employees?

by Kyle C. Foust

Many employers institute policies prohibiting off-duty employees from accessing their facilities. If you are one of those employers, you should ensure that the language of your policy complies with the National Labor Relations Act (NLRA). Specifically, the policy must not violate Section (8)(a)(1) of the NLRA. The National Labor Relations Board (NLRB) recently struck down two off-duty employee access policies. This article provides an overview of the two policies and discusses how you can avoid drafting an unlawful personnel policy.

Tri-County test

You must be aware of the language contained in your policies. Overly broad language that provides the company with full discretion to limit or dictate off-duty employee access to your facility may violate Section 8(a)(1) of the NLRA. Section 8(a)(1) states that it “shall be an unfair labor practice for an employer . . . to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [S]ection 7.” Section 7 protects an employee’s right to organize, join, assist, and bargain with a union or to refrain from such activities. Thus, you cannot institute an off-duty access policy that limits any of those rights. To determine whether a policy violates employees’ rights, the NLRB has established a three-pronged test known as the Tri-County test.

According to the NLRB, policies prohibiting off-duty employees from accessing company facilities are lawful so long as they meet three requirements:

  1. The policy must limit access solely to the interior of the facility and other working areas.
  2. The policy must be clearly disseminated to all employees.
  3. The policy must apply to off-duty employees seeking access to the facility for any purpose, not just to workers engaging in union activities.

Recently, however, the Board used the third prong to limit an employer’s ability to implement and enforce off-duty access restrictions in two cases.

50 Employment Laws in 50 States, including off-duty activity

Saint John’s Health Center policy

Saint John’s Health Center’s policy permitted off-duty employees access to the facility “to attend Health center[-]sponsored events, such as retirement parties and baby showers.” Two employees violated the policy. The first employee was campaigning on behalf of a union, while the second employee was simply retrieving his wallet. The hospital disciplined each worker for violating the policy.

Because the hospital permitted some access to its facilities, the policy didn’t conform to the third prong of the Tri-County test, which requires that a policy prohibiting off-duty access apply to “any purpose.” Therefore, the NLRB held that the hospital’s policy violated the NLRA. According to the Board, allowing employees to enter the facility only for hospital-related business gave management an unacceptable level of unlimited discretion that could be used to infringe on employees’ rights under the NLRA.

Sodexo America’s policy

On July 3, the NLRB again dealt with a hospital’s off-duty access policy. The hospital had implemented a policy that prohibited off-duty employees from entering the interior of the hospital or any work area outside the hospital except to visit a patient, receive medical care, or conduct hospital-related business. The policy further defined “hospital- related business” as “the employee’s normal duties or duties as specifically directed by management.” When four off-duty employees entered the facility for non-work-related reasons, the hospital disciplined them.

The National Union of Healthcare Workers filed an unfair labor practice charge against the hospital. The NLRB held that the hospital’s “hospital-related business” exception was overly broad and the policy violated the NLRA because it gave the hospital “free rein to set the terms of off-duty employee access.” Again, the Board was concerned about management’s discretion to limit employees’ rights.

However, the NLRB refused to hold that all exceptions to the Tri- County test’s third prong are invalid. Rather, exceptions that are unrelated to a worker’s employment are permitted. In this case, for instance, the NLRB held that a policy is valid if it permits off-duty employees to visit patients or seek medical care within the hospital since each activity is unrelated to employment.

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Bottom line

These cases demonstrate that the NLRB will limit employers’ ability to regulate or restrict access to their facilities by off-duty employees. Given this trend, off-duty employee accesspolicies may be challenged more frequently, particularly during union organizing campaigns. You should therefore review your off-duty access policy to ensure it uniformly prohibits access for all purposes. Language that is overly broad gives management too much discretion in dictating employee rights, which may violate Section 7 of the NLRA.

Kyle C. Foust is a law clerk with Axley Brynelson, LLP. If you have questions about this article, please contact Saul C. Glazer at sglazer@axley.com or 608-260-2473.