Off-Duty Access Rules: NLRB Approves Policy Previously Ruled Unlawful

January 14, 2015 /

Since the mid-1970’s the law has (and remains) the same with respect to governing workplace policies that limit an off-duty employee’s ability to be remain on or return to company property. For nearly 40 years, a rule barring off-duty access to company property is valid only if it (1) limits access solely to the interior of the facility; (2) is clearly disseminated to all employees; and (3) applies to off-duty access for all purposes, not just for union activity. So why did the Board change its mind after initially ruling that the following Sodexo Group policy was unlawful?

“Off-duty employees are not allowed to enter or re-enter the interior of the Hospital or any other work area outside the Hospital except to visit a patient, receive medical treatment, or conduct hospital-related business.

  1. An off-duty employee is defined as an employee who has completed his/her assigned shift.
  2. Hospital-related business is defined as the pursuit of the employee’s normal duties or duties as specifically directed by management.
  3. Any employee who violates this policy will be subject to disciplinary action.”

In St. John’s Health Center, the Board found policy language virtually identical to Sodexo’s unlawful although it allowed access for “health center sponsored events, such as retirement parties and baby showers.” There, St. John’s had unlimited discretion to permit off-duty employee access simply by sponsoring an event. In Sodexo, the exception covered only employees who could easily decipher whether they were on or off-duty. Noticeably, policies that reserve too much discretion for employers to determine when employees are on duty are unlawful. Prudent employers should review their off-duty policies to ensure they comply with this recent nuance.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.