Why it matters: The latest target of the National Labor Relations Board’s (NLRB) displeasure with regard to employer policies: a provision prohibiting off-duty employees from remaining on the premises after their shift ended. Affirming an administrative law judge’s ruling, the Board held that because the policy at issue contained an indefinite exception – where a supervisor could grant approval on a case-by-case basis – the provision violated the National Labor Relations Act (NLRA) by giving the employer too much discretion. The decision is only the latest iteration of the Board’s crackdown on various employer policies, from social media to confidentiality and even hats.

Detailed Discussion

Oakland, California-based Piedmont Nursing Home maintained a rule that stated: “Employees may not clock in for duty before their shift begins, nor are they to remain on the grounds after the end of their shift, unless previously authorized by their supervisor. Employees must have prior supervisor authorization before working/incurring overtime.”

In September 2011 the Nursing Home’s administrative manager sent a memorandum reaffirming the rule: “No employees are allowed inside the building when not scheduled to work unless they have prior approval of their supervisor/manager, Human Resources, or the Executive Director.”

Prior approval had been granted by the employer under three circumstances: for off-duty employees to pick up their paychecks at the security desk, attend meetings with human resources personnel, or arrive early for the night shift.

The events triggering the NLRB case began when a union representative at Piedmont Gardens requested that off-duty employees be granted permission to attend a meeting with a human resources director. The request was denied. The off-duty employees arrived at the building anyway but were not allowed in the facility.

An administrative law judge found the policy violated Section 8(a) of the NLRA. A three-member panel of the NLRB affirmed.

Employers may validly restrict off-duty access as long as the rule applies only to the interior of the facility and other working areas, is clearly disseminated to all employees, and applies to all off-duty employees seeking access for any purpose, the Board explained, not just those engaging in union-related activity.

Piedmont Gardens ran afoul of the last requirement by including “an exception, indefinite in scope, under which off-duty access is permitted with supervisory authorization,” the panel wrote. “The vice in such a rule is that it gives the [employer] ‘broad – indeed, unlimited – discretion “to decide when and why employees may access the facility.”’”

Although the nursing home argued it had limited exceptions to just three circumstances, the Board said the record failed to establish “that those were the only circumstances under which supervisors and managers had granted access in the past or had discretion to grant access.”

The Board found the rule unlawful on its face as well as illegal when applied against the off-duty employees who were not allowed to enter the facility.

One panel member agreed with the outcome in the decision but noted his disagreement with the Board’s ruling on the facial legality of the policy. He would have found “that a rule may lawfully prohibit off-duty employees from accessing the interior of a workplace even if the rule contains an exception permitting access if employees obtain the prior approval of a supervisor or manager or if access is warranted by other unspecific circumstances,” according to the decision. “Such an exception reasonably contemplates legitimate business reasons, which cannot be enumerated in advance, that predictably would warrant allowing off-duty employees on the premises.”

Although he believed the rule to be facially lawful, Piedmont Gardens violated Section 8(a) by applying its off-duty access rule to restrict the exercise of Section 7 rights, however, the panel member said.

The Board ordered the employer to rescind the rule and cease and desist from maintaining and enforcing the off-duty policy.

To read the NLRB’s decision, click here.