The National Labor Relations Board has ruled that an employer violated the National Labor Relations Act by implementing a rule that limited off-duty employee access to the workplace, except for specific purposes.

In a 2-1 decision issued last week in Sodexo America LLC, the NLRB held that the University of Southern California Hospital violated Section 8(a)(1) of the (NLRA) by maintaining and enforcing such a rule.

The hospital’s off-duty access policy provided that: 

  • Off-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.
  • An off-duty employee is defined as an employee who has completed his/her assigned shift.
  • Hospital-related business is defined as the pursuit of the employee’s normal duties or duties as specifically directed by management.
  • Any employee who violates this policy will be subject to disciplinary action.

The NLRB applied its 1976 ruling in Tri-County Medical Center to the “hospital-related business” exception of the policy, and found that such a provision violates the NLRA. In Tri County, the NLRB developed a three-part test to determine the legality of an off-duty employee access policy, balancing the property interests of an employer against the right of employees to engage in protected, concerted activity under Section 7 of the NLRA.

Applying that test, the NLRB held that an off-duty employee access policy will be upheld only if it: 

  • limits access solely with respect to the interior of the facility and other working areas;
  • is clearly disseminated to all employees; and
  • applies to off-duty employees seeking access to the facility for any purpose and not just to those engaging in union activities.

The majority noted the NLRB’s recent decision in Saint John’s Health Center, which held that a policy barring off-duty employee access to the employer’s facility except for employer‑sponsored events violated the NLRA. There, the NLRB reasoned that, with this exception, “the Respondent is telling its employees, you may not enter the premises after your shift except when we say you can,” and thus such a rule is inconsistent with Tri-County.

In Sodexo, the NLRB found that the “hospital-related business” exception to the no‑access policy similarly provides management with unfettered discretion to permit off-duty employees to enter the facility “as specifically directed by management.” Applying both Saint John’s and Tri-County to the hospital policy’s “hospital-related business” exception, the NLRB held it violated Section 8(a)(1) of the NLRA because it does not uniformly prohibit access to off-duty employees seeking entry to the property for any purpose.

NLRB Member Brian E. Hayes dissented, stating that Saint John’s applied an “unduly restrictive interpretation” of the Tri-County test, which was not supported by NLRB law or principles. “This is even more evident here,” Member Hayes wrote, “where the end result of the majority’s holding is that a hospital cannot maintain a valid off-duty access rule if it also allows employees to engage in innocuous activities such as picking up paychecks, completing employment-related paperwork or filling out patient information.”

Finally, the majority decision rejected the argument that the no-access policy’s exceptions for visiting patients or seeking medical treatment ran afoul of the NLRA. In doing so, the NLRB noted that the purpose for which the individuals seek access to the facility under those exceptions is unrelated to their employment. Rather, these individuals are seeking to enter the facility as a member of the public, not as an employee, and access is granted or denied on the same basis and under the same procedures as for members of the public. This reasoning is consistent with prior NLRB precedent in Southdown Care Center, 308 NLRB 225, 232 (1992), in which the NLRB held that a policy restricting off-duty employee access to a residential facility except when visiting residents and following visitor rules does not violate the NLRA.

Employers should carefully re-examine any no-access policy to ensure that it is narrowly tailored and complies with the NLRB’s Tri-County requirements. Of paramount importance is consistent enforcement and application of any such policy. Employers must be sure that any policy is clearly and effectively communicated to employees, and that off-duty employees are made aware that they have no greater right or authority to access a facility than any other member of the general public.

As this case demonstrates, allowing off-duty employees access to restricted areas, even for potentially benign or casual reasons, as the dissent pointed out, can open the door for employees to access those same areas for organizing purposes.

If you have questions about this ruling or its implications, please contact Brian D. Pedrow at 215.864.8108 or pedrow@ballardspahr.com, Meredith C. Swartz at 215.864.8132 or swartzm@ballardspahr.com, or the member of the Labor and Employment Group with whom you work.


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