The National Labor Relations Board (NLRB) recently issued a decision in Piedmont Gardens, 260 NLRB NO. 100 (2014) regarding the legality of an employer’s off-duty access policy. Piedmont Gardens is a nursing home. Many employers, especially those in health care or other highly-regulated industries, have policies that prohibit against employees lingering around the job site when not working. Off-duty employees can not only be a disruption to the business and create security risks, but can also increase an employer’s liability. After the newest NLRB decision on the issue, however, employers should review their policies to ensure that they do not run afoul of federal law.

The NLRB first dealt with off-duty access in 1976, in the case of Tri-County Medical Center, 222 NLRB 1089 (1976). It was decided then that policies limiting after-hours access to the workplace are lawful, provided they:

1. Limit access solely to the interior of the facility and working areas (parking lots or other areas that are outside the building cannot be restricted);

2.  Are clearly disseminated to all employees; and,

3.  Apply to off-duty employees seeking access to the facility for any purpose, and not just to those engaging in union activities.

It is critical to note that Section 7 of the National Labor Relations Act (NLRA) allows all employees (even those in non-unionized workplaces) to engage in concerted activity for mutual aid and protection and to form, join, assist  organize or communicate about matters relating to labor unions or working conditions. Any potential interference with Section 7 in a workplace can lead to an unfair labor practice under NLRA Section 8(a)(1).

Citing to the precedent established in Tri-County Medical Center, the NLRB found Piedmont Gardens’ policy to be unlawful. Although the employee handbook generally prohibited employees from remaining on the premises after their shifts ended (in accord with the rules established in Tri-County Medical Center), it contained the exception, “unless previously authorized by a supervisor.” This exception, according to the NLRB, gave supervisors unlimited discretion to determine “when and why employees may access the facility.” Such unfettered discretion is contradictory to a general prohibition, in the eyes of the NLRB.

For more on this case and some best practice pointers related to off-duty access, check back on Wednesday.