The National Labor Relations Board (“NLRB”) has reviewed a number of private employer rules restricting off-duty employees’ access to employer facilities. In some cases, the NLRB has held that the employer’s rule was unlawfully overbroad because it granted the employer too much discretion to determine the business reason for an employee’s access.  In other cases, the NLRB found similar rules to be lawful. We have previously written about these developments:  NLRB Says NO to No-Access Rule for Off Duty Employees and Hospital’s Off-Duty No-Access Rule – NLRB Says this One’s OK.

In the most recent case involving a hospital’s no-access rule, the NLRB held that the rule was OK, but the inconsistent way the hospital chose to enforce it was a violation of employee rights under the National Labor Relations Act.

The Lawful Rule

Here is the policy that was held to be lawful on its face:

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.

In so ruling, the NLRB stated that an employer’s rule barring off-duty employee access to its facility is lawful only if it:

  1. Is limited to the interior of the facility;
  2. Is clearly disseminated to all employees; and
  3. Applies to off-duty access for all purposes, not just for union activity.

The NLRB held as a matter of policy that affording access to off-duty employees, as members of the public and not as employees, for purposes of receiving medical treatment or visiting patients did not run break the law. According to the NLRB, the rule’s exception for conducting “hospital-related business,” which is defined as “the pursuit of the employee’s normal duties or duties as specifically directed by management,” was not really an exception at all. Rather, it was a clarification that employees who are not on their regular shifts but are nevertheless performing their duties as employees under the direction of management may access the facility.

Discriminatory Enforcement Was Unlawful

Although the rule was lawful, the hospital in this case didn’t enforce it uniformly. The hospital permitted off-duty employees to enter the facility for a variety of reasons unrelated to union activity (e.g., picking up paystubs, submitting scheduling requests, applying for a transfer and attending social events such as retirement parties and wedding or baby showers). But, on at least two occasions, the respondent applied its off-duty access policy to prevent or curtail off-duty employees from meeting with union representatives in the hospital cafeteria. This was the problem.  The hospital focused on the union-related purpose of the off-duty visit to the cafeteria.  That was discriminatory and a violation of employee rights.

Lesson for Private Employers

Because the employer’s off-duty no-access rule was specifically held to be lawful, private employers should review existing no-access rules to assure that those rules either duplicate this rule or follow it closely in every material respect. Just as important, management should take care to assure that the rule is uniformly enforced – no exceptions. Those exceptions may, as in this case, open the door to access for union purposes and lead to a finding of an unfair labor practice.