September 21, 2012

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NLRB Rules that Employers Must Prohibit All Interior Access by Off-Duty Employees in Order to Prohibit Any

"Associates are not permitted in the interior areas of the hotel more than fifteen minutes before or after their work shift. Occasionally, circumstances may arise when you are permitted to return to interior areas of the hotel after your work shift is over or on your days off. On these occasions, you must obtain prior approval from your manager. . . . This policy does not apply to parking areas or other outside nonworking areas." 

According to the National Labor Relations Board majority in J.W. Marriott, the above work rule is a commonplace work rule and unlawful under the principles established in the Board's 1976 Tri-County Medical Center decision because it is not a uniform prohibition of access. Rather, the rule prohibits off-duty employee access except in certain unspecified circumstances subject to a manager's "prior approval," which gives the employer discretion to decide when and why employees may access the facility. Further, the rule also runs afoul of the general test applied to workplace rules under other Board precedent because -- although the rule does not explicitly restrict activity protected by Section 7 -- according to the Board majority, employees would reasonably construe the language of the rule to prohibit Section 7 activity.

J.W. Marriott is not an anomaly among Obama Board decisions. It is merely the most recent in a growing body of cases invalidating employers' off-duty no-access rules due to "exceptions." Policies barring off-duty employees' access to an employer's facility except for employer-sponsored events (Saint John's Health Center) and for hospital-related business (Sodexo) recently met a similar fate. As dissenting Board Member Hayes pointed out, "the majority's decision continues this Board's dismantling of the lawful balance between an employer's right to control its property and an employee's right to engage in Section 7 activity."

The Board seems intent upon expanding access to employer property for union organizing. However, the current all-or-nothing approach may have unintended consequences because it tends to require a virtually complete ban on off-duty access without any allowance for common sense exceptions such as permitting off-duty employees to return to the workplace to retrieve medication or other personal property left behind, to attend special employer-sponsored events, or even to pick up a paycheck or other work-related documents. As such, this troubling line of cases will necessarily cause employers to restrict rather than expand opportunities for off-duty employees to access employers' facilities for sensible, and even compelling, purposes.

Although the majority in J.W. Marriott and related cases posited that exceptions to a uniform prohibition might be valid under some narrow "special circumstances," without concrete examples of any exception they would find legitimate, the concept offers no practical benefit to employers seeking guidance in developing lawful rules. Indeed, the only exceptions the majority has noted in its recent access cases that would pass muster are exceptions that would allow off-duty hospital employees to enter a hospital for medical treatment or to visit a patient. As Member Hayes persuasively noted in his dissent, "the only no-access rule [the majority] would surely find valid . . . is one that would prohibit access uniformly."

In the wake of President Obama's re-election, employers can expect four more years of aggressive attempts to adopt new rules that make it easier for unions to organize and win elections, and decisions that -- like J.W. Marriott -- have a broad impact on seemingly benign and reasonable employment policies in both non-union and union workplaces.

If you have questions regarding the Board's decision, or need assistance in revising your employee policies and procedures, please contact Nate Niemuth, Ellen Glass, or any other member of Ryley Carlock & Applewhite's Labor and Employment practice group.

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