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. 

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

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.

Off-Duty Access Policy in Handbook Struck Down by NLRB

The National Labor Relations Board struck down an off-duty access policy in a nursing home’s handbook that prohibited employees from hanging around after work unless they had previous permission from their supervisors because it violated employees’ Section 7 rights of the National Labor Relations Act. As written, the rule provided supervisors with unlimited discretion to determine permissible access for off-duty employees, and this discretion could be used to deny workers from remaining (or returning) to work to engage in union organizing activities.

Over the past few years, the Board has consistently found off-duty access rules that allow access for some purposes and denies it for others violates the Act. For example, grocery stores, restaurants, and health clubs that allow workers to return to shop, eat, and exercise, must allow workers to return for other purposes, as well.

NLRB Condemns Limiting Off Duty Employees’ Access to Company Property

As appearing in the Human Resources of Central Ohio (HRACO) monthly newsletter

NLRB Condemns Limiting Off Duty Employees’ Access to Company Property 

Many companies limit an employee’s ability to return to the workplace when off-duty. These policies seek to reduce distractions for on-shift employees, prevent loitering, and eradicate the possibility of off-duty employees performing compensable work or suffering a workplace injury. Most policies of this kind, however, permit off-duty workers to be on company property with management’s approval or for limited “employer related” purposes, i.e. picking up pay checks, meeting with human resources, or attending company sponsored events.

According to the National Labor Relations Board, limiting off-duty access to the workplace except with management approval or when employees are engaging in employer-related business is unlawful. The Board does not like employers having discretion as to when off-duty employees may and may not be on company property; it supposedly stifles an employee’s Section 7 rights. Further, management having the discretion in determining when to permit access to non-working employees could supposedly lead employees into believing they are prohibited from engaging in union organizing or other protected activity without a manager’s approval.

This rule, like many others previously discussed in this column, is inapposite to decades of legal precedence governing off-duty access of employees. Now, it appears, only a uniform ban on access is permissible. Despite the Board opining that a “narrow, extremely specific” off-duty access rule might be deemed valid, it provided no guidance as to what type of rule is acceptable.

What Should HRACO Members Do?

This new rule places employers in an untenable position for they must now choose one of three options:

  1. Adopt a policy limiting all off-duty access, even for legitimate reasons like picking up a paycheck or attending special events;
  2. Grant employees access to the workplace without any restrictions; or
  3. Prepare a policy with narrow exceptions for special circumstances and hope the policy survives legal scrutiny.

Adopting a blanket policy limiting all off-duty access may be viable in warehousing, manufacturing, construction, and other industries where the workplace is not open to the public. But employers in retail, health care, and service industries face a dilemma since off-duty employees become customers that should probably not be banned. For example, should off-duty grocery store workers be prohibited from shopping at the employer’s store? Must off-duty gas station attendants, fast food workers, and retail clerks fill up their gas tanks, eat, and shop at their competitors places of business? Are hospitals and nursing homes willing to stop off-duty employees from becoming patients and residents or from visiting patients and residents?

In my opinion – which is not legal advice – a work rule that allows employees to return only for company business or company-sponsored events will probably be seen as invalid for restricting an employee’s ability to engage in concerted activity. However, a rule that only allows employees to return in a non-employee status, such as a customer, will likely be fine. This opinion of mine has not yet been tested, and as we know, the current NLRB is finicky and may or may not agree with what I say.

Don’t Forget to Express Interest in HRACO’s New Labor Relations SIG

As you can tell, changes with the NLRB come fast and furious. In an effort to keep HRACO members up to date on the latest developments in labor relations, HRACO is launching its Labor Relations Special Interest Group in January, 2013. Each month I will lead a discussion and answer questions regarding labor relations. If you have an interest in attending this exciting new SIG, please let us know by clicking here and sending me an email that expresses your interest so we will have a better understanding of the size of room to reserve. Together, we will stay one step ahead of these constantly changing laws.

Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at
Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.