EYM King of Michigan, LLC is a franchisor of Burger Kings. EYM maintained a neutral policy against loitering and soliciting by employees anywhere on company premises. The company relied on the policy to warn and discipline several workers who met in the restaurant parking lot to discuss their wages and protest. The National Labor Relations Board found the policy and disciplinary action violated the National Labor Relations Act because the parking lot was not a “selling area” of the store. The Board ordered EYM to rescind its loitering and solicitation policy.
The NLRB and federal courts have frequently held that employers cannot prohibit employees from soliciting for a union or discussing employment issues during nonworking time. But the NLRB has allowed retail establishments like department stores to ban employees from soliciting on a selling floor, even if they do it during their non-working time. Allowing union activity or employee solicitation in sales areas may disrupt business.
Contending that the drive-thru areas of restaurants “are no less selling areas than the dining rooms merely because they are not enclosed by bricks and mortar,” the company argued that it should be able to ban solicitation in its parking lot just as retail stores are allowed to prohibit the activity on the selling floors. But the Board members rejected the argument inline with Sam’s Club (2007) where the NLRB held that a rule limiting solicitation could not be extended to cover parking lot and outdoor smoking areas.
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) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.