In two separate opinions this month, the National Labor Relations Board provided guidance on the lawful parameters of solicitation policies for retail and hospital employers.
We previously discussed the rules that apply to no-solicitation policies in our March 2018 E-Update, and summarize them again as follows: Employees may be prohibited from soliciting other employees during either’s working time, which is the time an employee is assigned to or engaged in the performance of job duties, but does not include scheduled breaks or meal periods, or the time before and after the employee’s shift. Retail employers may also ban solicitation on the selling floor, and hospital employers may ban solicitation in patient care areas.
In EYM King of Michigan, LLC dba Burger King, (August 15, 2018), the Board rejected the employer’s contention that the fast food restaurant’s parking lot was a selling area where solicitation could be banned, even though customers drive through or park their cars in the lot. In UPMC, UPMC Presbyterian Shadyside dba UPMC Presbyterian Hospital, (August 27, 2018), the Board found that where the employer allowed off-duty employees access to the cafeteria, it could not prohibit them from soliciting other employees in the cafeteria during their non-working time. Moreover, the employer could not show that patients were disturbed by this activity in the cafeteria.