A recent NLRB decision hit on two issues of potential interest to labor professionals. The first, covered in today’s post, involved an employer policy on off-duty employee access to the employer’s property. It is another good example of the NLRB’s relentless scrutiny of employer policies, although this time with a slightly more favorable outcome for employers.
The policy at issue read:
An off-duty employee is not allowed to enter or re-enter the interior of the Hospital or any Hospital work area, except to visit a patient, receive medical treatment, or conduct hospital-related business. “Hospital-related business” is defined as the pursuit of an employee’s normal duties or duties as specifically directed by management.
The NLRB majority found this policy facially lawful under a 1976 decision dealing with off-duty employee access to an employer’s facility. That rule requires, among other things, that the policy prohibit off-duty access for “all” purposes. The majority reiterated that, as a matter of policy, affording access to off-duty employees as members of the public for purposes of receiving medical treatment or visiting patients did not violate the NLRA. Member Miscimarra (R) concurred in this result, but would have reached it through a different, more employer-friendly, analysis.
The NLRB majority, however, went on to find that the employer applied the rule in an unlawfully discriminatory fashion. Specifically, the majority noted that the employer permitted off-duty employees to enter the hospital for a variety of reasons, such as picking up paystubs, submitting scheduling requests, and attending social events such as retirement parties and wedding or baby showers. Accordingly, the rule was discriminatorily applied when the hospital prohibited off-duty access for purposes of meeting with union representatives in the hospital’s cafeteria.
The key takeaway for the labor professional from this case is the illusory nature of the employer’s victory. The discrimination analysis the majority used means an employer must apply an access policy in a way that most employers would find untenable. For example, which employer wants to tell employees coming on-site for a retirement party or to pick up a paystub that the employee cannot do so? My bet: those employers would be few and far between.