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Employee Off-Duty Access: The NLRB's New Twist on the Open Door Policy

As most of you are probably aware, the National Labor Relations Board (NLRB) has been extremely active in applying the National Labor Relations Act (NLRA) in ways that have are having a significant impact on employers without labor unions. The most well-known of these areas is in the context of social-media policies and the application of those policies in disciplinary matters. In a recently issued decision, the NLRB took on the issue of employee access to the employer's facility during off-duty hours.  

From a historical standpoint, the NLRB decisions considered restrictions for off-duty employee access acceptable, so long as the restriction was clearly communicated to the employees, limited to the interior/working areas of the employer, and applied to all employees seeking access and not just those engaging in union-related activity. This standard allowed employers to generally prohibit employee off-duty access and still allow for limited exceptions as they might arise. For example, an employer could have a policy prohibiting off-duty access that allowed for exceptions with manager approval. This would allow a supervisory employee to make a limited exception in those circumstances where off-duty access was really necessary. Under the historical approach, these limited exceptions would allow for enough flexibility to handle emergency situations and still not run afoul of being interpreted in a way that was targeting employees engaging in union activity.    

The historical approach followed by the NLRB dates back over thirty-five years and has worked sufficiently well to balance the needs of employers to secure their facilities while still allowing some flexibility when needed by employees. The current NLRB, however, in yet another reversal of long-established law, has upset that balance. 

In Marriott International, Inc., the NLRB invalidated the employer's policy restricting off-duty access to the facility unless the access was approved by a supervisor. The rationale for finding the policy a violation of the NLRA hinged upon the supervisory employees having absolute authority in determining an acceptable reason for access, which could allow for the supervisor to engage in discriminatory acts prohibited by the NLRA. Or, more simply put, the ability for an employee to request access would require employees seeking to engage in protected acts under the NLRA (like organizing co-workers) to request permission from the employer to engage in this protected activity. This need to request the right to enter the facility to engage in these protected acts could cause the employees not to engage in those activities. It is this hypothetical potential for a violation that caused the NLRB to invalidate the employer policy. 

The take away for employers following this and other recent NLRB decisions is a relatively simple one. In order to ensure the validity of a policy designed to limit employee access to the employer's facility during off-duty hours, the employer should assert an absolute prohibition without any exception, no matter how harsh that may seem. Allowing any exception in a policy could lead to the NLRB finding that the policy violates the NLRA. 

For the entire text of the NLRB's decision click here.



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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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