In December 2011 and July 2012, the National Labor Relations Board (NLRB) issued two decisions making it more difficult for employers to limit off-duty access to working areas. Both of these decisions involved healthcare employers. Now, a third decision, Marriott International, Inc. d/b/a J.W. Marriott Los Angeles at L.A. Live, 359 N.L.R.B. No. 8 (Sept. 28, 2012), further erodes an employer's ability to maintain control over its workplace. Indeed, the likely outcome of this decision will be to turn certain workplaces, such as healthcare facilities, into virtual employee forums.

Almost forty years ago, in Tri-County Medical Center, 222 N.L.R.B. 1089 (1976), the NLRB articulated the three-part test it would use to determine the validity of off-duty access rules. A policy restricting access by off-duty employees will be valid if it "(1) limits access solely to the interior of the plant and other working areas; (2) is clearly disseminated to all employees; and (3) applies to off duty employees seeking access to the plant for any purpose and not just to those employees engaging in union activity." 222 N.L.R.B. at 1089.

The Tri-City test clearly takes aim at efforts to block "union activity," that is, concerted activity by employees that is protected by Section 7 of the National Labor Relations Act. Moreover, the test seeks to balance employer needs by protecting interior and other working areas but allowing access to nonworking areas.

The NLRB now has abandoned any pretense of balancing these competing interests.

In December 2011, the NLRB struck down an off-duty access rule at Saint John's Health Center in Santa Monica, California. The rule limited off-duty access in working areas to employer-sponsored events. It was defective because, if off-duty employees could be in working areas solely to participate in employer-sponsored events, then by implication, they could not be in working areas to engage in protected concerted, or union, activity. Saint John's Health Center, 357 N.L.R.B. No. 170 (2011).

What was striking about Saint John's Health Center, was that the NLRB "discovered" a lofty purpose to overcome an employer's legitimate need to keep patients out of the way of labor disputes: The workplace, even a hospital, is the logical, and best, place for employees to meet to discuss concerted activities and to persuade other employees to join them.

The NLRB's second blow came in July 2012, in the case of Sodexo America LLC, 358 N.L.R.B. No. 79 (2012). In that case, the NLRB found unlawful a portion of an access rule at USC University Hospital that limited off-duty access to the conduct of hospital-related business. Here, the stated problem was not that the rule could be read to limit Section 7 activity, but that the employer could decide what was hospital-related business.

Gone was the element of the Tri-City test that looks at how a rule was enforced or whether the rule was applied to prevent union activity. The rule was defective because it sought to keep reserve (and patient care areas) for hospital business. Enforcement of the rule would be inconvenient for employees who, as the NLRB said in Saint John's, have a much easier time conversing about union activity when they are in the workplace.

The most recent decision, involving the J.W. Marriott at L.A. Live, appears to sound the final death knell for employer attempts to limit access to working areas by off-duty employees. At issue in this case were two policies, one restricting off-duty access to interior areas of the hotel, and the other restricting off-duty employee use of guest facilities. The access rule required management permission for off-duty employees to enter the interior working areas of the hotel. The use rule identified specific guest areas where employees could not have access unless they were on a specified work assignment (presumably while on duty) or had prior approval from their managers (presumably while on- or off-duty).

Finishing the work begun in Saint John's Health Care, the NLRB found the employer rules unlawful for several reasons. They were invalid because they could reasonably be read to include nonworking areas and thus were presumptively invalid under NLRB precedent.

Second, to the extent they applied to working areas, the rules gave the employer discretion to grant or deny access. Thus, as the dissent pointed out, a blanket prohibition on off-duty access, which would prevent all union activity in work areas, would be lawful, while something less than a blanket prohibition is not.

Third, the rules tend to chill employee exercise of rights protected by Section 7, under the framework set forth in Lutheran Heritage Village -- Livonia, 343 N.L.R.B. 646 (2004). Presumably, employers cannot be trusted to decide when they are required under the National Labor Relations Act to allow employee access to their facilities for purposes of protected concerted activity or solicitation.

As dissenting NLRB Member Hayes correctly points out, employers now must choose between banning off-duty access entirely and no policy at all. The former would penalize, for example, a nurse who left his wallet or her prescription medication at work. The latter effectively makes the workplace an acknowledged, and favored, forum for concerted activity.

These decisions leave intact an employer's ability to prohibit solicitation when employees are working. Moreover, the NLRB offers that some limitations on employee access may be lawful, but does not suggest what they might be.

Although the J.W. Marriott is a hotel, the NLRB's reliance on precedents involving healthcare employers suggests that the NLRB would reach the same conclusion if the employer were a hospital or other healthcare facility. Indeed, hotels and many healthcare facilities share the common trait of inviting public access in ways that factories and other businesses do not. For example, both often have lobbies, meeting or community rooms and food service areas, which are used by members of the public.