Executive Summary: As the holiday season approaches, non-employee protestors, labor organizers or otherwise, often target retailers in an effort to maximize the reach of their message due to the high foot traffic experienced at retail locations. Repeated and consistent efforts by these non-employee protestors can be a source of concern for retailers and negatively impact both their business and goodwill in the community. Retailers, however, are not without options in these scenarios and can protect themselves with an effective and evenly-applied solicitation and distribution policy restricting the time, place and manner of non-employee activity on their property.

Ninth Circuit Acknowledges Property Owner's Right to Restrict Non-Employee Access to Private Property

In Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am. (9th Cir. 2014), the Ninth Circuit acknowledged a private property owner's right to limit the time, place and manner in which non-employee union members lawfully accessed the property owner's premises. Specifically, a California shopping mall sued a union under state law for trespass and private nuisance after it protested against an Urban Outfitters store that hired nonunion subcontractors.

The mall, although privately owned, had a policy for accommodating speech-related activities on its property and developed time, place and manner restrictions to abide by the California Constitution's protection of speech and petitioning in shopping centers. Pursuant to its policy, the mall generally required that petitioners, solicitors, and protestors fill out an application in advance, agree to remain within one of two designated common areas, and not "create noise of such volume as to impinge on the peace of the general public, obstruct pedestrian traffic, or damage or destroy any property."  The policy specifically prohibited "‘physical force, obscene language or gestures, or racial, religious or ethnic slurs,' physical or verbal threats, or ‘any disturbance which is disruptive to the [mall's] commercial function.'"

The mall owners sued the union in California state court, claiming the union violated the mall's policy when it failed to apply in advance to protest, protested in unapproved places (e.g., privately owned common areas), and protested in a disruptive and intimidating manner that interfered with the mall's and its tenants' normal operation of business (e.g., marching, yelling, blowing whistles, damaging property, and cat-calling and making sexually provocative gestures toward female patrons). The union removed the case to federal court arguing that, because the mall owners asserted claims related to an alleged unlawful secondary boycott in violation of § 303 of the federal Labor Management Relations Act (LMRA), their state law claims were preempted.

The federal trial court dismissed the case; however, the Ninth Circuit, in a detailed opinion, reversed the lower court and revived the mall's state law trespass and private nuisance claims. The Ninth Circuit held that the property owners were not seeking to "prevent or punish labor conduct, but only conduct that violates the Mall's time, place and manner rules [over free-speech activities]," thus, the suit was not "fundamentally, a labor case in the guise of an action in trespass; it [was] a trespass case complaining only incidentally, at most, about union conduct."

Retailers Need a Policy Restricting the Time, Place and Manner of Non-Employee Protests

Given that the Ninth Circuit's Retail Property Trust decision recognizes the importance of maintaining a policy with time, place and manner rules to address non-employee protests on private property, employers should be sure they have a solicitation and distribution policy and that it is implemented in a non-discriminatory manner.

Important issues to address in such polices include:

  • Pre-Approval. A solicitation and distribution policy should require that non-employee solicitors and protesters receive pre-approval to use a retailer's property. For ease of administration, some retailers create a pre-approved list of non-employee solicitors that they revisit annually (i.e., the Salvation Army, the Red Cross, Girl Scouts of America - who can say no to those cookies!). Requests by other solicitors should be submitted to a designated individual/department for review and approval. Use of a uniform application is not required, but is recommended. Moreover, retailers are encouraged to keep records of each request to demonstrate their use of the policy.
  • Restrictions on Frequency and Timing. An effective policy also should restrict the frequency and timing of non-employee solicitations and protests. Some retailers limit non-employee solicitations by hours, weeks and months (for example, "Non-employee solicitation/distribution is limited to a maximum of six hours per day. Any group approved pursuant to Company policy is limited to no more than three days in any one week and may not exceed six days in any 30-day period.").
  • Restrictions on Assembly Location. An effective policy also should restrict where non-employee solicitors and protesters may assemble. The policy can require that the non-employee solicitors and protesters maintain a certain physical distance from a retail outlet's exit door or remain in designated areas (such as sidewalks, common areas, etc.).
  • Restrictions on Manner of Conduct. An effective policy also should restrict the manner in which non-employee solicitors and protestors conduct themselves while on a retailer's property. At a minimum, the policy should prohibit the destruction of property, the use of noise amplifying devices, and the use of physical force or violence, obscene language or gestures, or racial, religious, or ethnic slurs. Furthermore, retailers should consider restricting when non-employee solicitors and protestors may approach patrons.

Prepare Managers to Deal with Potential Policy Violations

Retailers should prepare their frontline managers to act swiftly and decisively when either unapproved non-employee solicitation or distribution activity occurs or approved groups violate the policy.

  • First, managers should be trained on the policy and the retailer's rights under the policy's time, place and manner restrictions.
  • Second, managers should identify the individual in charge of the activity and communicate the options available to the group. Such options may include leaving the premises or retreating to property not owned or controlled by the retailer.
  • As a final resort, managers should be prepared to involve local law enforcement, where appropriate, to protect their property rights as either the owner or a tenant with legal control of the property.

Nondiscriminatory Enforcement of Policies is Essential

Finally, it is essential that retailers apply their solicitation and distribution policy in a non-discriminatory manner and ensure their policies are properly tailored so as not to "chill" employees' rights to engage in concerted activity regarding working conditions.

Employers' Bottom Line

Retailers should implement a non-discriminatory, properly tailored solicitation and distribution policy, if they do not already have one, and ensure their policy includes effective time, place and manner restrictions on non-employee solicitors and protesters.