April 15, 2021

Volume XI, Number 105

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What the Heck Do Girl Scout Cookies Have to Do With Personnel Policies?

It’s that time of year again: Girl Scout cookie season! We’ve all seen Girl Scouts set up shop at businesses or in parking lots selling their famous cookies. This serves as a good time to remind employers that if you allow some organizations onto your property, such as the Girl Scouts, you may also have to allow labor unions access. 

The Supreme Court has long held that employers can exclude non-employer labor union agents from its property, but cannot discriminatorily enforce property rights by excluding union agents while allowing other groups onto its property. The Board had traditionally interpreted this non-discrimination rule very broadly, finding that employers discriminated if they barred non-employee union representatives but allowed other charitable or civic organizations on its premises.  

The Board narrowed its interpretation of the non-discrimination rule in a 2019 decision, holding that an employer discriminates only if it treats “nonemployee activities that are similar in nature disparately,” and that “protest and boycott activities are not sufficiently similar in nature to charitable, civic, or commercial activities.” Under this standard, the Board will look at not only the nature, but also the purpose of the activities and organizations employers allow onto their property. 

Therefore, under the current standard, employers can allow the sale of Girl Scout cookies or other activities by charitable or civic organizations on their property without also having to allow access to non-employee union agents. While the current standard is welcome news for employers and Girl Scout cookie lovers alike, the pendulum could swing back the other direction under a Biden Board if it reverts back to a narrower interpretation of the non-discrimination rule. Regardless, employers should give careful consideration to what types of groups—and for what types of purposes—they allow onto their property in order to avoid potential discrimination claims. 

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© 2021 BARNES & THORNBURG LLPNational Law Review, Volume XI, Number 88
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About this Author

Associate

A detailed-oriented and strategic thinker, Colleen Naumovich is committed to helping her clients navigate the ever-changing field of labor and employment law, understand how the laws affect every facet of their business, and implement best practices.

Colleen brings focus and dedication to assisting her employer clients with various workplace and employee needs they have. She conducts legal research and drafts memoranda, motions, and positions statements to the National Labor Relations Board. She also helps clients prepare for trial by reviewing depositions and providing summaries of...

317-231-6408
David J. Pryzbylski, Barnes Thornburg Law Firm, Indianapolis, Labor Law Attorney
Partner

David concentrates a large portion of his practice on assisting employers with traditional labor matters. His deep experience includes collective bargaining, work stoppages, arbitrations, union avoidance training and strategies, union representation elections, unfair labor practice charges, contract administration, and various other labor relations issues.

David has helped companies secure favorable outcomes with labor issues around the country. He has experience with numerous labor unions, including the Steelworkers, Teamsters, Laborers, Sheet...

317-231-6464
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