NLRB Rules on Employer Off-Duty Access Policies

July 24, 2012

In Tri-County Medical Center (1976), the National Labor Relations Board (NLRB) held that an employer’s rule barring off-duty employee access to a facility is valid only if it limits access solely to the interior of the facility, is clearly disseminated to all employees, and applies to off-duty access for all purposes, not just for union activity.

Sodexo America is a subcontractor to USC University Hospital that provided cafeteria and food services operations.  It had a policy that stated:

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.

1. An off-duty employee is defined as an employee who has completed his/her assigned shift.

2. Hospital-related business is defined as the pursuit of the employee’s normal duties or duties as specifically directed by management.

Because this policy was deemed by the NLRB in the Sodexo case (decided this July) to allow unlimited discretion to decide when and why employees may access the facility, the NLRB found that the company’s no-access policy violated the law because it “does not uniformly prohibit access to off-duty employees seeking entry to the property for any purpose.”

NLRB Member Brian Hayes noted in his dissent that “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.”

To avoid running afoul of the NLRB, employers must carefully review their off-duty access policies to ensure that the policies uniformly prohibit access for all purposes.  Any exception, even those very narrowly tailored, will likely be deemed overly broad by the NLRB if challenged.  Policies that permit access on the same basis as the public appear to be permitted. These may include visiting patients in a hospital, seeking medical treatment in a hospital or, presumably, purchasing goods in a retail store as a customer.