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Have You Looked At Your Off-Duty Policy Lately?
The National Labor Relations Board has recently taken aim at employee handbook rules that prohibit off-duty employees from remaining at or returning to their employer's facility.
Since 1976, the Board's policy has been to allow employee handbook rules prohibiting off-duty employees from accessing the employer's facility if (1) the rule applies only to interior areas of the facility; (2) the employer clearly advises all employees of the rule; and (3) the rule applies to off-duty access for any purpose, and not just for union activity.
Until recently, the Board upheld rules that require a manager's approval for off-duty access. The Board took the position that no employee would reasonably believe that such a rule required a manager's approval before taking part in protected union activity.
But three recent decisions, all involving employers in the Los Angeles area, found off-duty rules requiring a manager's approval or limiting access to management-sponsored events to be unlawful.
Last July, a Board administrative law judge found that a J.W. Marriott hotel unlawfully issued the following handbook rule:
Occasionally, circumstances may arise when you are permitted to return to interior areas of the Property after your work shift is over or on your days off. On these occasions, you must obtain prior approval from your manager.
Because the rule did not limit the need for a manager's approval to work areas of the hotel, nor gave a business reason for requiring a manager's approval, the judge found that employees would reasonably believe that a manager's approval was required for engaging in union activity.
In December, the Board invalidated a hospital's off-duty access rule providing that:
Off-duty employees are permitted access to the cafeteria and are also permitted access to the building to attend Health center sponsored events, such as retirement parties and baby showers.
The Board declared that an exception for employer-sponsored events effectively tells employees "you may not enter the premises after your shift except when we say you can" and is invalid, even though the hospital allowed off-duty use of the cafeteria at all times for any purpose, including union activity.
And earlier this month, the Board invalidated another hospital's off-duty access rule, which applied to its own employees as well as employees of its food service contractor, Sodexo, based on the rule's exception for "hospital-related business," defined as "the employee's normal duties or duties as specifically directed by management," because the exception gave management "unfettered discretion to permit employees to enter its facility...."
Employers should draw the following lessons from these decisions.
* An exception to a general rule against off-duty access for company-sponsored or company-approved events makes the rule unlawful.
* Because employees have a protected right to solicit and to distribute literature in non-work areas during non-work time, managerial approval for off-duty access should be limited to work areas of the employer's facility. Employers should not require managerial approval for off-duty employees to access employee cafeterias, break and locker rooms, and other non-work areas.
* These decisions, which show that even large, sophisticated companies like Marriott and Sodexo are struggling to keep up with changes in Board law, underscore the importance of periodic handbook reviews. As we have previously discussed, discipline issued in accordance with unlawful handbook rules may expose employers to unfair labor practice liability. An unlawful rule may also be grounds for the Board to throw out the results of a union election and order a re-run election, even if the employer does not enforce the rule during the union organizing campaign. We would be pleased to assist your company with a handbook review.
For more information, call us today at (818) 508-3700, or visit us on the web at www.brgslaw.com
Sincerely,
Richard S. Rosenberg
Partner
BRG&S, LLP
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