NLRB Opens the Door for Off-Duty Employees to Engage in Organizing Activity
Many employers maintain policies prohibiting off-duty employees from accessing their facilities. Since its Tri-County Medical Center decision more than 35 years ago, the National Labor Relations Board has found such policies to be lawful so long as the policy: (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 activities. In the last year, however, the Board has relied on the third prong's "for any purpose" language to chip away at an employer's ability to implement and enforce off-duty access policies. In Saint John's Health Center, the Board – in one of its last decisions before the expiration of Craig Becker's recess appointment – invalidated a hospital's off-duty access policy, finding the policy violated Tri-County's third prong because it permitted off-duty access "to attend Health center sponsored events, such as retirement parties and baby showers." Most recently, in Sodexo America LLC, 358 NLRB No. 79 (July 3, 2012), the Board again relied on Tri-County's third prong to invalidate a hospital's off-duty access policy. To learn more about these decisions and their potential implications for employers, please continue reading Littler's ASAP, NLRB Opens the Door for Off-Duty Employees to Engage in Organizing Activity, by John Doran, Carie Torrence, and Sarah Green.