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Labor: NLRB decision makes it more difficult for employers to restrict off-duty employee access to the workplace

Policies must be uniformly applied, clearly disseminated and restricting access only to work areas

The National Labor Relations Board (NLRB) recently made it more difficult for employers to restrict off-duty employee access to the workplace through its Sept. 28 decision in Marriott International, Inc., which applies to employers with or without unions in the workplace.

In Marriott International, the NLRB evaluated the legitimacy of two off-duty employee access policies promulgated, revised and maintained by Marriott. The first—the “access rule—restricted off-duty access to work areas by employees without prior management approval. The original access rule restricted off-duty access to “interior areas,” but excluded from the policy non-work areas such as Marriott’s parking lot. The revised rule, however, more broadly restricted access to Marriott’s “property.”

The second policy—the “use rule” —restricted employees’ use of the hotel’s facilities during nonworking hours without management approval. The original use rule restricted access to “guest facilities.” The revised use rule, however, restricted employee access to specific facilities such as resident floors, rooms, elevators and public restaurants. It also restricted employee access to any “property outlet.”

The NLRB considered whether employees would interpret these rules as restricting or prohibiting the exercise of their rights under the National Labor Relations Act (NLRA) (i.e., the right of employees to act together to try to improve their pay and working conditions or fix job-related problems). It evaluated the rules in light of the “well-established test” of Tri-County Medical Center. The Tri-County Medical Center three-part test provides that a rule restricting off-duty employee access is valid only if it:

  1. Limits access solely with respect to the interior of the premises or other working areas
  2. Is clearly disseminated to all employees
  3. Applies to off-duty employees seeking access to the premises for any purpose and not just to those employees engaging in union activity

Evaluating the policies under this three-part test, the NLRB determined the following:

  • The revised access rule and both versions of the use rule were found to be unlawful because they could reasonably be construed as restricting employee access to non-work areas, thus violating Tri- County’s first requirement.
  • Both versions of the use and access rules were found to be invalid because they impermissibly gave management unlimited discretion to determine which employees could access its facilities and for what purpose. Consequently, the rules were not a “uniform prohibition of access” and violated Tri- County’s third requirement.
  • Both versions of the use and access rules were found to be unlawful because reasonable employees could conclude that the nature of the activity for which they sought access would have to be disclosed to management. Consequently, this “compelled disclosure” would have a “chilling effect” on the willingness of employees to engage in activity protected under the NLRA.

While the NLRB seemed to suggest that a “narrow, extremely specific” access rule could be deemed valid, it provided no specific guidance. Employers are encouraged to review any access or use policies currently in place to determine whether and what steps may be necessary to take in order to comply with the Tri-County test as reinforced by the NLRB.

Contributing Author

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John Kuenstler

John F. Kuenstler is a partner in the Chicago office of Barnes & Thornburg LLP and a member of the Labor and Employment Department. Mr....

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