Difference between Employee and Non-Employee Off-Duty Access Policies

The NLRB and courts recognize that off-duty employees have greater rights than non-employees when it comes to accessing the employer’s property to engage in protected activity.

The NLRB applies a three-part test to determine if an employer’s off-duty access policy is valid under the National Labor Relations Act. An off-duty access policy is valid only if it: 1) limits access solely to the interior of the facility and other working areas; 2) is clearly disseminated to all employees; and 3) applies to off-duty employees seeking access to the facility for any purpose and not just to those engaging in union activity. In essence, employers may not maintain a rule or prohibit off-duty employees from accessing the exterior areas or other non-working areas of the employer’s premises.

The current NLRB will find that simply maintaining an overly broad off-duty access rule is unlawful. For example, off-duty employees distributed union pamphlets advocating for pay raises to other employees and customers just outside the main entrance of a store. The manager told the employees to leave, they did not leave nor were they disciplined for not leaving. The company had a long-standing policy prohibiting employees from loitering or “hanging out” around the company’s premises when off-duty. This policy prohibiting off-duty employees from hanging out in all areas of the employer’s premises was unlawful.

NLRB Chairman Miscimarra argued in his dissent that in evaluating work rules, the NLRB should place more emphasis on how a rule is actually applied compared to the more amorphous standard of how employees may “reasonably construe” a rule. Miscimarra is currently in the minority of the Board. As new Board members are appointed, the NLRB’s position on access rules and many other controversial issues may change.

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 reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com. 

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