National Labor Relations Board (NLRB) Finds Employer’s Ban on Off-Duty Access Unlawful
A nursing home’s policy prohibiting off-duty employees from remaining on its premises after their shift “unless previously authorized by” their supervisor interfered with the labor rights of employees, the NLRB has ruled. Piedmont Gardens, 360 NLRB No. 100 (May 1, 2014).
The union filed unfair labor practice charges against the employer, alleging among other things, that the policy was unlawful under the NLRA.
The NLRB explained that “a rule restricting off-duty employee access is valid only if it (1) limits access solely with respect to the interior of the facility and the other working areas, (2) is clearly disseminated to all employees, and (3) applies to off-duty employees seeking access to the plant and not just to those employees engaging in union activity.” (Citing Tri-County Medical Center, 222 NLRB 1089 (1976)). Finding the employer violated the third prong, the NLRB held that while the policy prohibited off-duty access in general, it “contains an exception, indefinite in scope, under which off-duty access is permitted with supervisor authorization.” This “unlimited” discretion, the NLRB said, is why the rule was overbroad under the NLRA.
In its defense, the employer argued its policy was lawful because, in practice, it permitted only off-duty employees to enter the nursing home in three limited circumstances: when an off-duty employee picked up his or her paycheck, attended a scheduled meeting with HR, or arrived early for the night shift. The NLRB rejected this defense, stating that the employer’s assertions were unsupported by the record and that, in any event, this practice was not memorialized in the off-duty access rule itself or in any other memorandum concerning the rule. Accordingly, the NLRB held that it need not pass on whether a violation would remain had the policy clearly provided that off-duty employees would be granted access only in the three circumstances described by the employer.