With the holiday season upon us, nonemployee protesters, whether they’re labor organizers or others, often target retailers in an effort to maximize the reach of their message during the increased seasonal foot traffic. Repeated efforts by nonemployee protesters can be a source of concern for retailers and can have a negative impact on both their business and goodwill in the community. However, retailers are not without options in these scenarios and can protect themselves with an effective and evenly applied solicitation and distribution policy restricting the time, place, and manner of nonemployee activity on their property. 
Property owner’s right to restrict access
The U.S. 9th Circuit Court of Appeals (whose rulings apply to states on the West Coast, including California) has acknowledged a private property owner’s right to limit the time, place, and manner in which nonemployee union members may lawfully access its premises. Specifically, a shopping mall sued a union under state law for trespass and private nuisance after it protested against an Urban Outfitters store that hired nonunion subcontractors. The issue is important for employers everywhere, not just on the West Coast.
The mall, although privately owned, had a policy for accommodating speech-related activities on its property and developed time, place, and manner restrictions to abide by the state’s protection of speech and petitioning in shopping centers. Under its policy, the mall generally required that petitioners, solicitors, and protesters fill out an application in advance, agree to remain within one of two designated common areas, and not “create noise of such volume as to impinge on the peace of the general public, obstruct pedestrian traffic, or damage or destroy any property.” The policy specifically prohibited “‘physical force, obscene language or gestures, or racial, religious or ethnic slurs,’ physical or verbal threats, or ‘any disturbance which is disruptive to the [mall’s] commercial function.'”
The mall owners sued the union in state court, claiming union members violated the policy when it failed to apply in advance to protest, protested in unapproved places (e.g., privately owned common areas), and protested in a disruptive and intimidating manner that interfered with the mall’s and its tenants’ normal operation of business (e.g., marching, yelling, blowing whistles, damaging property, and catcalling and making sexually provocative gestures toward female patrons).
The union got the case transferred to federal court, arguing that because the mall owners asserted claims related to an alleged unlawful secondary boycott in violation of § 303 of the federal Labor Management Relations Act (LMRA), their state-law claims were preempted. The federal trial court dismissed the case. However, the appellate court, in a detailed opinion, reversed the lower court and revived the mall’s state-law trespass and private nuisance claims.
The court held that the property owners were not seeking to “prevent or punish labor conduct, but only conduct that violates the mall’s time, place and manner rules [over free-speech activities].” Thus, the lawsuit was not, “fundamentally, a labor case in the guise of an action in trespass; it [was] a trespass case complaining only incidentally, at most, about union conduct.” Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am. (9th Cir., 2014).
Retailers need policy on nonemployee protests
Given that the 9th Circuit’s decision in Retail Property Trust recognizes the importance of maintaining a policy with time, place, and manner rules to address nonemployee protests on private property, employers should be sure they have a solicitation and distribution policy and that it’s implemented in a nondiscriminatory manner. Employers should address the following important issues in such policies.
- Preapproval. A solicitation and distribution policy should require that nonemployee solicitors and protesters receive preapproval to use a retailer’s property. For ease of administration, some retailers create a preapproved list of nonemployee solicitors that they revisit annually (e.g., the Salvation Army, the Red Cross, Girl Scouts of America—who can say no to those cookies?). Requests by other solicitors should be submitted to a designated individual or department for review and approval. Using a uniform application is not required, but it’s recommended. Moreover, retailers are encouraged to keep records of each request to demonstrate their use of the policy.
- Restrictions on frequency and timing. An effective policy should restrict the frequency and timing of nonemployee solicitations and protests. Some retailers limit nonemployee solicitations by hours, weeks, and months. (For example, “Nonemployee solicitation/distribution is limited to a maximum of six hours per day. Any group approved pursuant to company policy is limited to no more than three days in any one week and may not exceed six days in any 30-day period.”)
- Restrictions on assembly location. An effective policy also should restrict where nonemployee solicitors and protesters may assemble. The policy can require that the nonemployee solicitors and protesters maintain a certain physical distance from a retail outlet’s exit door or remain in designated areas (such as sidewalks or common areas).
- Restrictions on manner of conduct. An effective policy should restrict the manner in which nonemployee solicitors and protesters conduct themselves while on a retailer’s property. At a minimum, the policy should prohibit the destruction of property, the use of noise- amplifying devices, and the use of physical force or violence, obscene language or gestures, or racial, religious, or ethnic slurs. Furthermore, retailers should consider restricting when nonemployee solicitors and protesters may approach patrons.
- Managers must be prepared to enforce the policy. Retailers should prepare their frontline managers to act swiftly and decisively when either unapproved nonemployee solicitation or distribution activity occurs or approved groups violate the policy. First, managers should be trained on the policy and the retailer’s rights under the policy’s time, place, and manner restrictions. Second, managers should identify the individual in charge of the activity and communicate the options available to the group, including leaving the premises or retreating to property not owned or controlled by the retailer.
As a final resort, managers should be prepared to involve local law enforcement, if appropriate, to protect their property rights as either the owner or a tenant with legal control of the property. It’s essential that retailers apply their solicitation and distribution policy in a nondiscriminatory manner and ensure the policy is properly tailored so it doesn’t “chill” (impinge on) employees’ rights to engage in concerted activity regarding their working conditions.
Bottom line
Employers should implement a nondiscriminatory solicitation and distribution policy if they don’t already have one. Ensure the policy includes effective time, place, and manner restrictions on nonemployee solicitors and protesters.
Katherine Siuta O’Shea is an employment attorney at FordHarrison LLP in Atlanta, Georgia. She may be contacted at koshea@fordharrison.com.