Most employers maintain policies restricting access to their premises by off-duty employees and non-employees. These policies serve many useful purposes--they help reduce potential personal injury claims, protect the confidentiality of proprietary information and processes, reduce the possibility of unwarranted overtime claims under the Fair Labor Standards Act and allow employers to restrict access to the property for non-legitimate or non-business activities, such as union organizing efforts.

However, recent cases decided by the National Labor Relations Board ("NLRB"), one of which has been affirmed by a federal Court of Appeals, have placed significant constraints upon the scope of these access policies.

Generally, an employer may bar non-employees from distributing union-related materials on its property, although it must allow its own employees to do so during non-work time in non-work areas. However, in March 2011, the NLRB was asked to decide whether a property owner could bar employees of a contractor working on the employer's property from handing out union literature on the employer's property. New York-New York, LLC Hotel & Casino, 356 NLRB No. 119.

New York-New York ("NYNY" or "the casino") contracted with Ark Las Vegas Restaurant Corporation ("Ark") to provide food service to guests and customers of NYNY at its sit-down restaurants, at food courts, and through banquets and room service on the casino property. On three separate occasions, off-duty employees of Ark entered the casino and began distributing handbills to NYNY customers urging them to tell Ark to recognize and bargain with the union. The handbilling occurred at NYNY's main entrance, and directly in front of two of the restaurants operated by Ark in the casino. When the Ark employees refused to leave the premises, they were cited with trespass and escorted from the casino by local police.

Ruling upon an unfair labor practice charge filed by the union, the NLRB held that NYNY violated the National Labor Relations Act ("NLRA") by excluding the handbilling Ark employees from its property. In so ruling, the NLRB held that NYNY had not demonstrated that the handbilling significantly interfered with its own use of the property or that the exclusion of the Ark employees was justified by some other legitimate business reason. The NLRB's decision was affirmed by the Court of Appeals for the District of Columbia in April 2012. On October 4, 2012, a petition for certiorari to the Supreme Court was filed.

More recently, the NLRB found that a policy that restricted the access of off-duty employees to the employer's premises except when granted approval at a manager's discretion violated the NLRA. Marriott International, Inc. d/b/a J.W. Marriott Los Angeles at L.A. Live, 359 NLRB No. 8 (September 28, 2012). In a 2-1 decision, the board majority held that since the policy was not a complete bar to access, but gave unlimited discretion to the employer to grant exceptions, it could lead employees to reasonably conclude that they were not permitted to engage in union activities or other protected activities on the property without a manager's permission. Thus, under this ruling, employers must either ban all access to the property by off-duty employees without exception or allow totally unrestricted access.

Dissenting Member Brian Hayes correctly noted that by requiring employers "... to prohibit all access in order to prohibit any makes it virtually impossible for an employer to draft an enforceable rule restricting off-duty employee access."

The board majority did indicate in a footnote to the decision that there might be narrow exceptions to its ruling in special circumstances, but gave no guidance as to what those circumstances might be.