You know that short non-solicitation policy in your handbook that says don’t handout stuff at work that doesn’t have to do with work that you think is clearly legal? Think again. A recent Eleventh Circuit decision agreed with a National Labor Relations Board (NLRB) opinion that found a one line non-solicitation policy to violate employees’ Section 7 rights.

Mercedes-Benz U.S. International (MBUSI) has a plant in Alabama that the United Auto Workers would very much like to organize. MBUSI says it is neutral when it comes to whether its employees want to unionize but it has a policy about when and where materials (including pro-union materials) can be distributed in its plant. Specifically, the policy provides:

“MBUSI prohibits solicitation and/or distribution of non-work related materials by Team Members during work time or in working areas.”

So, this means that if an employee is working, he or she should not be handing out non-work related stuff. That’s fair, right? Not so fast.

The NLRB found that while MBUSI is allowed to:

  1. prohibit employees from handing out non-work stuff while they are supposed to be working, and
  2. prohibit employees who are not working from handing out non-work stuff to other employees who are supposed to be working,

this policy could be interpreted to prevent more than that. Specifically, an employee could interpret this policy to mean that he or she can’t hand out stuff in a working area, regardless of whether all the employees involved are not working.

The Administrative Law Judge found, and the NLRB agreed, that this policy infringed on workers’ rights because it could be interpreted to violate their right to engage in concerted activities for the purpose of collective bargaining protected by Section 7 of the NLRA.

While the Eleventh Circuit did not agree with everything in the NLRB decision, it did agree that the policy could be interpreted to prohibit protected activity and needs to be changed.

So Now What?

So what can your policies say? The Eleventh Circuit opinion has language indicating the following are probably okay to tell your employees:

  • You may not solicit other employees or distribute materials while you are supposed to be working.
  • You can solicit or distribute materials while you are on break or lunch or otherwise off the clock but only to other employees who are not supposed to be working.

There is some language in the opinion about not being allowed to solicit or distribute in work areas, but a good portion of the opinion is about whether different places in the MBUSI plant were “work areas” or not. The opinion suggests that you can prohibit solicitation on a production line (because you have an interest in safety and production). To avoid problems, however, you may just want to focus on the issue of whether the solicitor or solicitee is supposed to be working rather than where they are located at the time. As with all of the recent NLRB handbook policy decisions, these apply to employers whether they have a union or not.