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. 

“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.

Latest Handbook Provisions to be Invalidated by the NLRB

Union and Non-Union employers – consider this your monthly reminder to have competent labor counsel review your handbooks for compliance with the NLRB’s recent rulings about common provisions that violate the National Labor Relations Act. And for the companies that believe that the NLRB will be reined in under President Trump, well, Trump’s nominations have not yet been confirmed and even then it will take years before we see a shift in labor law back to its traditional meaning.

Real Estate firm Newmark Grubb Knight Frank’s employee handbook violated a lot of the NLRB’s newfangled definitions of labor law. Some of the violations, which were lawful for decades but now unlawful, include:

  • Getting corporate permission before posting anything about the company on social media
  • Requiring employees to “avoid activities…inconsistent with the best interests of the company and our clients.”
  • No video, audio, or images of the workplace without company permission
  • The company’s conflict of interest policy was unlawful since (as of 2015) employees could perceive union activity as conflicting with their employer’s interest
  • Preventing clothing with printed slogans / promotions
  • Prohibition on distributing written material at work
  • Not allowing employees to use certain company technology for personal use

In all, 17 policies were invalidated. While that number is staggering, it is also common for employers who have not updated their handbooks for compliance with the “new labor laws.”

Worth noting, the Company argued that the ULP was invalid because it was filed by a supervisor. Unfortunately for companies, the Judge ruled that anyone, and he meant anyone could file charges under the National Labor Relations Act.

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.

Will the Second Circuit Overturn the NLRB’s Surreptitious Workplace Recordings Ruling by Giving Employers a Road Map to Compliance?

Remember last year when the NLRB ruled that Whole Foods’ policy that prohibited recordings without proper authorization or the consent of the parties being recorded, was unlawful? As a reminder, Whole Foods said the purpose of the policy was to encourage open communication and to eliminate the “chilling effect” on the expression of views that may exists when an employee is concerned that his or her conversation is being secretly recorded. Conversely, the NLRB ruled that such policies have a “chilling effect” on an employee’s exercise of Section 7 rights. The Board went on to characterize covert (surreptitious) recordings as an essential element in vindicating Section 7 rights, thereby condoning and protecting that type of behavior.

Whole Foods appealed the decision to the Second Circuit. During oral argument, the judicial panel recommended adding a disclaimer to the policy that would alert employees that the policies were not intended to prohibit the recording of activities or conversations that fall within the ambit of Section 7 of the Act. Ironically, this is the precise language that management has proposed to add to several handbook policies that the Board has found unlawful. The Board has rejected the proposal every time. Could the Second Circuit finally give employers what they want by finding that disclaimer language would make an otherwise (NLRB interpreted) unlawful handbook policy lawful? Whatever the decision holds, it could have a tremendous impact on all employers, good or bad.

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.

President Trump’s Anticipated Effect on Workplace Policies

In 2016 the National Labor Relations Board maintained its generally pro-union, anti-employer stance in ways that affect both unionized and non-unionized employers. The Board currently has two openings, which, once President Trump fills, will result in a pro-business NLRB. However, due to the Board’s rules, employers might not see immediate improvement. After all it wasn’t until years 7 and 8 of Obama’s presidency that major pro-union initiatives were implemented. Therefore, employers in 2017 (and likely beyond) will be forced to deal with the extreme pro-union rulings from 2015 and 2016. But once the pro-business Board can start unraveling current anti-business rulings, here is what I expect will happen to workplace policies that have been in the crosshairs of the pro-union NLRB.

All employers, regardless of union status, should remain (or become) aware of the NLRB’s General Counsel’s position that many handbooks and other employer policies are unlawful. For reference, see his March, 2015 GC Memorandum 15-04. This guidance gives examples of good and bad language for policies on keeping employer information confidential (broad policies are deemed unlawful, because employees must be allowed to discuss wages and other issues of mutual interest), professionalism, media contact (employees have the right to talk to the media on their own behalf or on behalf of others), use of company logos (employees are allowed to use logos and marks for their own, non-commercial purposes), conflicts of interest, and recording and photography at work, which the General Counsel says must be permitted on non-work time when employees are engaged in protected activity. I do not expect changes to these to occur for a long time since many of the General Counsel’s theories are now supported by recent NLRB decisions.

Similarly, an employer rule prohibiting “non-approved individuals’ access to information or information resources, or any information transmitted by, received from, printed from, or stored in these resources” without prior written approval was unlawful because it would prevent employees from sharing, with their union representatives or their co-workers, information relating to work conditions stored on the information systems. See, T-Mobile USA, Inc. The Board also struck down bans on employees using information or communication resources in ways that were “disruptive, offensive, or harmful” or to “advocate, disparage, or solicit for political causes or non-company related outside organizations.”

Employers everywhere should take 2017 to audit all written policies and procedures in light of this and other recent decisions centering on language the Board finds to impose impermissible restrictions on employee sue and access to email and information systems.

Matt Austin who 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.

OK to Ask Employee to Delete Tweets per NLRB

The NLRB found a fast food restaurant in Pennsylvania did not violate federal labor law when it asked a worker to delete certain Twitter postings, including one with “cheap #labor.” The Board’s ruling comes after an Administrative Law Judge found among other things, that the company violated the employee’s right to discuss wages and working conditions when it requested he delete a handful of postings from his Twitter account.

The employee wrote “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?” Another tweet, referencing that the company charged for guacamole, said “it’s extra not like #Qdoba, enjoy the extra $2.”

Per the NLRB, these tweets did not constitute concerted activity because they did not address a term or condition of employment and were not made on behalf of a group of employees. Rather, they were a single worker’s gripe. Savvy workers have, in the past, made similar gripes but gratuitously referenced concerted activity or union organizing at the end which made them activity protected by the National Labor Relations Act.

The NLRB also upheld the ALJ’s finding that an outdated social media policy that prohibited employees from posting “incomplete, confidential, or inaccurate information” and making “disparaging, false, or misleading statements” violated the NLRA.

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.

NLRB [Again] Overturned Decision that Pro-Union Buttons Violated Work Rules

In Boch Honda the employer maintained a handbook policy that prohibited customer-facing employees from wearing, among other things “message” pins. NLRB ALJ determined that the employer’s interests in workplace safety and preventing damage to vehicles met the special circumstances standard and justified the ban.

As it’s prone to do, the NLRB reversed the ALJ and determined that the employer had failed to meet the special circumstances exception because the ban on pins was overbroad because it applied to employees, e.g. administrative and finance employees, who had no contact with vehicles.

Unfortunately, on appeal, the court agreed with the NLRB. The court was not persuaded that a “small and unobtrusive” union pin worn by a non-uniformed employees would interfere with the general professional image the car dealer was trying to create. The court also agreed with the NLRB that the ban was overbroad. Although acknowledging that a pin could fall into an engine or scratch a vehicle, the court found the ban was not narrowly trailer to prevent those kinds of events from happening.

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.