NLRB Nixes Policy Prohibiting Off-Duty Access to Facility

By William Peacock, Esq. on June 11, 2014 | Last updated on March 21, 2019

Many employers don't allow employees to troll around the facility after or before working hours. Why? The reasons vary: security, a distraction-free workplace, keeping people from working off the clock, etc.

But now, if your company has such a blanket policy, it may have to have an exception: the Section 7 exception. That's right, the NLRB's favorite tool for blocking social media and workplace conduct policies is now making an appearance in off-duty facility access policies.

While you can limit access, you'll want to create an exception for the union and labor activities protected by Section 7.

Nursing Home v. Union

In Piedmont Gardens, the NLRB evaluated a nursing home's blanket ban on remaining on the premises after one's shift "unless previously authorized" by a supervisor.

Interestingly enough, the employer's actions here did seem to be very anti-union: a sign prohibiting union meetings in the breakroom, enforcing the off-duty access rule against employees who were attempting to present union complaints to management, etc. The NLRB didn't limit its findings of a violation of Section 7 to the as applied conduct, it also invalidated the policy on its face.

NLRB Really Loves Section 7

First, it was a fallen social media policy, courtesy of Section 7.

Then, it was a ban on workplace gossip.

Then, an employee-authored workplace conduct policy.

Why? Under Section 7, "employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."

The social media policy was basically an online non-disparagement policy, but it didn't exempt Section 7 topics. Ditto for the workplace gossip and conduct policies. Here, we're talking about a policy that prohibits accessing facilities while off-duty -- a shift from the NLRB's previous target, speech-based policies. And even though the union agreed to this policy, the board noted that any waiver of Section 7 protection must be explicit.

Avoiding Section 7 Scrutiny

At this point, is any workplace policy safe? The NLRB has gone from online speech, to gossip, to conduct, to physical facilities restrictions. It might be advisable to start adding something along the lines of, "nothing in this policy should be regarded as restricting protected labor or union activities or speech" to everything, maybe even cigarette break policies.

We joke (a bit), but the NLRB really is stretching Section 7 further than ever before.

For more tips on drafting workplace policies in light of this increased effort, check out our Legal Technology Center's tips for drafting Section 7-friendly social media policies, many of which will apply to other conduct policies as well.

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