Terrible events in Connecticut recently highlight the absolutely crucial ability of employers to be able to control access to their places of business. How ironic is it that the NLRB has significantly eroded the ability of an employer to control off-duty employee access to the workplace?
For over a generation the NLRB interpreted the National Labor and Relations Act to allow an employer to deny access to its property by off-duty employees. Typically, an employer’s policy that limited access had to do so solely with respect to the inside of the plant and/or working areas, be clearly explained to all employees, and apply universally to prohibit access to the plant by any off-duty employee for any purpose. These rules were consistent with other Board requirements relating to uniform and consistent application of employer policies, regardless of union presence.
But in several recent decisions, the Board found that any employer policy allowing off-duty employees back onto the facility for work related purposes (for example to pick up a paycheck or attend an employer sponsored evening event) were too sweeping in scope to be enforced. I usually don’t quote Board opinion language, but the facts here are important to understanding the bizarre way the Board reasoned to strike down these policies. In J.W. Marriot, the Board determined that a requirement that employees who were returning to their work area post-shift “obtain prior approval from your manager” was unenforceable because it gave managers “absolute discretion to grant or deny access for any reason, including to discriminate against or discourage" protected, concerted activity.
Now, there was no actual circumstance where any manager had refused to allow an employee access to a work area after hours for the purpose of preventing a protected meeting or discussion; the Board based its holding on the mere possibility of discrimination at some undefined future time. In other words, an employer cannot retain discretion in its management team to allow limited purpose access to its facility for off-duty employees, it must either reject all off-duty returns under all circumstances, or none. Of course, this holding represents a significant departure from previous Board opinions. And since most employers are not going to be put in a situation where they refuse to allow access to off-duty employees who, for example, might forget their medicine at work, the Board's ruling effectively opens the door to access by all off-duty employees. The Board did indicate that there might be special circumstances where an employer could allow reentry, but gave virtually no guidance on this, and the language of the Board’s opinion indicates that these would be unique circumstances, indeed.
Employers that limit access by off-duty employees to their work place but allow exceptions in very limited circumstances risk having that policy struck down. Moreover, a policy that requires manager permission for reentry is similarly likely to violate the Board's new interpretation of Section 8(a)(1) because of potential, but undefined harm to union organizers. redesign your workplace security plans accordingly.