In a decision with ramifications for employers in health, retail, hospitality and other industries serving the public, on October 22, 2015 in a decision, Marina Del Rey Hospital, 363 N.L.R.B. No. 22, 2015 BL 347693, the NLRB confirmed the legality of policies barring employees from the premises when not on duty, which contain an exception permitting off-duty employees to be on the premises as members of the public, e.g., as a patient or a visitor. The Board found, however, that enforcement of the facially neutral policy to certain employment restrict protected activity constitutes an unfair labor practice. The decision addressed the policy stated in the Marina Del Rey Hospital’s employee handbook stating:
Off-duty employees may access the Hospital only as expressly authorized by this policy. An off-duty employee is any employee who has completed or not yet commenced his/her shift.
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.
An off-duty employee may have access to non-working, exterior areas of the Hospital, including exterior building entry and exit areas and parking lots.
Any employee who violates this Policy will be subject to disciplinary action up to and including termination.
The record before the Board established that the hospital permitted off-duty employees on premise for non-union, employment-related activities such as picking up paystubs, submitting scheduling requests, applying for a transfer, and attending social events, e.g. retirement parties and wedding and baby showers. On at least two occasions, however, the hospital applied the off-duty access policy to prevent or curtail off-duty employees from meeting with union representatives in the hospital cafeteria. The Board found that this disparate enforcement of the otherwise facially lawful constituted an unfair labor practice in violation of employees’ Section 7 rights.
While at first blush the decision appears to favor a policy permitting carve outs, as a practical matter, the problematic examples of employee off-duty conduct, e.g., picking up pay stubs, applying for and the like, that the Board found problematic point to the difficulty employers are likely to have in maintaining a no access rule with carve-outs.