“No Loitering” Policy: Unlawful says NLRB

Loiter (verb): to stand or wait around idly or without apparent purpose.

Many workplaces prohibit off-duty workers from loitering at the worksite. These policies make great sense. They decrease the likelihood of wage and hour violations by providing off-duty employees the opportunity to claim they were working, but not being paid for their work. They also decrease the risk of an off-duty employee being injured at work and thus file workers compensation claims. Most of the handbooks I have reviewed have “no loitering” policies, and my clients strictly enforce them.

Well, the NLRB recently determined that a no loitering policy at a restaurant violated the National Labor Relations Act because it prevented employees from engaging in concerted activities for the purpose of collective bargaining or other mutual aid or protection, i.e. the right to handbill.

The NLRB held that “an employer’s rule denying access to off-duty employees to all areas of its premises violates the Act unless there are legitimate business concerns to justify the rule or policy.” The Board further found that the rule was overly broad and ambiguous because it did not define “loiter” or “hang around,” and could reasonably be interpreted to prohibit employees from engaging in protected activities, such as handbilling. Also, the rule contained no exception for protected activities like handbilling (despite the Board previously ruling several times that such disclaimers do not turn an unlawful policy into a lawful policy).

To all the employers who have a similar policy in their handbook, I have included the definition of loitering at the top of this post. Copy and paste it into your handbook. Then add a (useless?) disclaimer that the policy does not cover protected activity. Time for my disclaimer: What I just said is not legal advice; your no loitering policy may still violate the NLRA even after doing what I said.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

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