As appearing in the Human Resources of Central Ohio (HRACO) monthly newsletter
NLRB Condemns Limiting Off Duty Employees’ Access to Company Property
Many companies limit an employee’s ability to return to the workplace when off-duty. These policies seek to reduce distractions for on-shift employees, prevent loitering, and eradicate the possibility of off-duty employees performing compensable work or suffering a workplace injury. Most policies of this kind, however, permit off-duty workers to be on company property with management’s approval or for limited “employer related” purposes, i.e. picking up pay checks, meeting with human resources, or attending company sponsored events.
According to the National Labor Relations Board, limiting off-duty access to the workplace except with management approval or when employees are engaging in employer-related business is unlawful. The Board does not like employers having discretion as to when off-duty employees may and may not be on company property; it supposedly stifles an employee’s Section 7 rights. Further, management having the discretion in determining when to permit access to non-working employees could supposedly lead employees into believing they are prohibited from engaging in union organizing or other protected activity without a manager’s approval.
This rule, like many others previously discussed in this column, is inapposite to decades of legal precedence governing off-duty access of employees. Now, it appears, only a uniform ban on access is permissible. Despite the Board opining that a “narrow, extremely specific” off-duty access rule might be deemed valid, it provided no guidance as to what type of rule is acceptable.
What Should HRACO Members Do?
This new rule places employers in an untenable position for they must now choose one of three options:
- Adopt a policy limiting all off-duty access, even for legitimate reasons like picking up a paycheck or attending special events;
- Grant employees access to the workplace without any restrictions; or
- Prepare a policy with narrow exceptions for special circumstances and hope the policy survives legal scrutiny.
Adopting a blanket policy limiting all off-duty access may be viable in warehousing, manufacturing, construction, and other industries where the workplace is not open to the public. But employers in retail, health care, and service industries face a dilemma since off-duty employees become customers that should probably not be banned. For example, should off-duty grocery store workers be prohibited from shopping at the employer’s store? Must off-duty gas station attendants, fast food workers, and retail clerks fill up their gas tanks, eat, and shop at their competitors places of business? Are hospitals and nursing homes willing to stop off-duty employees from becoming patients and residents or from visiting patients and residents?
In my opinion – which is not legal advice – a work rule that allows employees to return only for company business or company-sponsored events will probably be seen as invalid for restricting an employee’s ability to engage in concerted activity. However, a rule that only allows employees to return in a non-employee status, such as a customer, will likely be fine. This opinion of mine has not yet been tested, and as we know, the current NLRB is finicky and may or may not agree with what I say.
Don’t Forget to Express Interest in HRACO’s New Labor Relations SIG
As you can tell, changes with the NLRB come fast and furious. In an effort to keep HRACO members up to date on the latest developments in labor relations, HRACO is launching its Labor Relations Special Interest Group in January, 2013. Each month I will lead a discussion and answer questions regarding labor relations. If you have an interest in attending this exciting new SIG, please let us know by clicking here and sending me an email that expresses your interest so we will have a better understanding of the size of room to reserve. Together, we will stay one step ahead of these constantly changing laws.
Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.