Unlawful Limited Access Policies

The National Labor Relations Board enforces the National Labor Relations Act which provides non-supervisory employees with the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. While the Board’s enforcement of the Act typically arises in the context of unionized employers and union organizing activity, now that only 6.6% of private sector employees in the United States are unionized, the current Board has delved significantly into the affairs of employers devoid of union activity. This includes declaring employers’ limited access policies unlawful under the Act.

In Sodexo America LLC, the employer hospital had a no-access policy stating, “[o]ff-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 to conduct hospital-related business.” Sodexo America LLC, 358 NLRB 79 (2012). The Board applied a three-part test established in Tri-County Medical Center, which held that an employer’s off-duty access policy “is valid only if it limits access solely to the interior of the facility, is clearly disseminated to all employees, and applies to off-duty access for all purposes, not just for union activity.” Id. Accordingly, the Board ruled that Sodexo’s policy violated the Act because it gave the employer hospital “unlimited discretion” in determining when and why off-duty employees could enter the hospital. Id.

In Marriott Int’l, Inc., the employer hotel’s “Returning to Work Premises” policy prohibited employees to access “interior work areas of the hotel more than fifteen minutes before or after their work shift” unless they obtained “prior approval from [their] manager.” Marriott Int’l, Inc., 359 NLRB 8 (2012). Again, the Board determined this policy was unlawful because it did not uniformly prohibit off-duty access pursuant to Tri-County Medical Center, but rather gave the employer complete discretion in deciding when employees could access the hotel and for what purposes. Id.

In response to recent Board decisions, all private employers, union and non-union alike, would be wise to reevaluate any off-duty access policies to ensure that they comply with the Act. Once a properly drafted policy is implemented, employers also need to ensure consistent compliance or risk having the policy become ineffectual should union organizing ever occur.

For more information related to limited access policies, please contact Katie Kelly.