An Open Door Policy? NLRB Issues Another Decision Striking Down an Employer’s Off-Duty Access Policy As Unlawful

Following its 2011 St. John’s Health Center decision finding that a policy baring off-duty employee access to an employer’s facility except for employer-sponsored events violated the NLRA, the NLRB recently ruled in Sodexo America LLC that a hospital violated the NLRA by unlawfully prohibiting off-duty employee access to the workplace except to visit patients, receive medical treatment or for “hospital related business” (defined as the pursuit of normal duties as specifically directed by management). In striking down USC University Hospital’s policy, the Board invoked its three-part test for evaluating the lawfulness of an off-duty no-access rule first established more than three decades ago in the Tri-County Medical Center case.  Under the test, an employer’s rule prohibiting off-duty employee access to a facility 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.  Applying the Tri County test, the Board found the “hospital-related business” exception provided management with “unfettered discretion” to permit off-duty employees to enter its facility at management’s direction, and therefore was unlawful because it did not uniformly prohibit access to off-duty employees seeking to enter the property for any reason, including engaging in Section 7 protected activity. In light of recent decisions on off-duty no-access policies the NLRB deemed unlawful, employers should carefully examine no-access policies to ensure they satisfy the Tri County standard, and be sure to emphasize that off-duty employees have no greater right to access a facility than any other member of the public. If you have any questions or for further information about implementing lawful no-access, no-solicitation and no-distribution policies, please contact James J. McGovern, Esq., jmcgovern@genovaburns.com or Douglas J. Klein, Esq., dklein@genovaburns.com, in the Labor Law Practice Group.