Executive Summary: An administrative law judge recently ruled that a Pacific Northwest fast food chain violated the National Labor Relations Act (NLRA) by maintaining a policy that prohibited off-duty employees from loitering or “hanging out” on store property, even though no employee was actually disciplined for violating the policy.

Background:

In Burgerville, LLC v. Industrial Workers of the World, employees of a fast food restaurant created a homegrown union called the “Burgerville Workers Union.” Off-duty employees distributed union pamphlets to other employees and customers just outside the main entrance of the store. These employees were advocating for a pay raise. An assistant manager calmly requested that the employees move to the public sidewalk, but they insisted they had a right to be on the property. The employees refused to move, but were not disciplined.

The company had a long-standing policy that prohibited employees from loitering or “hanging out” around the company’s premises when off-duty. However, the rule was rarely, if ever, enforced. There was evidence that employees frequently remained on the property after their shifts ended, eating meals, waiting for rides or waiting for coworkers. One day after the handbilling incident, the restaurant re-distributed the no loitering/no hanging out policy to employees.

Applicable Law:

The NLRA protects employees' rights to engage in (and refrain from engaging in) union activities and to otherwise discuss, debate and communicate with each other and the public regarding workplace terms and conditions of employment. Included within those rights are the rights of off-duty employees to handbill on their employer's property in non-work areas.

The National Labor Relations Board (NLRB) and the courts have long recognized that off-duty employees have greater rights than non-employees when it comes to accessing the employer’s property to engage in these protected activities. As noted by the judge in Burgerville (citing previous NLRB decisions), unlike non-employees, employees “are not strangers to the employer’s property, but are already rightfully on the employer’s property….”

The NLRB has applied a three-part test to determine whether an employer’s off-duty access policy is valid under the NLRA. An off-duty access policy is valid only if it: (1) limits access solely to the interior of the facility and other working areas; (2) is clearly disseminated to all employees; and, (3) applies to off-duty employees seeking access to the facility for any purpose – and not just to those engaging in union activity. Tri-County Medical Center, 222 N.L.R.B. 1089 (1976)

Importantly, the NLRB has found a violation even when there is no evidence that an overly broad rule was actually enforced or that employees were disciplined for violations. The NLRB will find a violation as long as an employee could reasonably construe the policy to prohibit protected activity.

Bottom Line for Employers:

Off-duty employees should not be treated like non-employees when it comes to trespassing. Except in limited circumstances, an employer may not maintain a rule or otherwise prohibit off-duty employees from accessing the exterior areas or other non-working areas of the employer’s premises. The NLRB is likely to find that merely maintaining an overly broad rule is unlawful. In this case, a rule that prohibited off-duty employees from “hanging out” in all areas of the employer’s premises was unlawful, even though the rule was not actually enforced.

Final Note: Current NLRB Chair Phillip Miscimarra has been critical of the Board’s approach to workplace rules. Miscimarra argues that in evaluating work rules the NLRB should place more emphasis on how a rule is actually applied – as compared to the more amorphous standard of how employees may “reasonably construe” a rule. Miscimarra is currently in the minority on the Board. As new Board members are appointed by the new administration, the NLRB’s position on employee access rules and many other controversial issues may change.