Lawfulness of Employee-Access Rules for Off-Duty Employees

A common problem or issue with surprising legal complications is the extent to which an employer can keep off-duty employees from returning to the premises.  The issue has gotten more complicated due to the current NLRB's policy that if an employer rule is overbroad and thus unenforceable, any discipline administered under that rule may also be deemed illegal.  While application of these rules normally comes up in situations involving a type of union activity, some concepts could apply to activities not involving union activity.

The NLRB evaluates employer access rules for off-duty employees in a case precedent that will find an access rule valid only if it: "(1) limits the access solely with respect to the interior of the plant and other working areas; (2) it is clearly disseminated to all employees; and (3) applies to off-duty employees seeking access to the plant for any purpose and not just to those employees engaging in union activity."  Tri-County Medical Center, 222 NLRB at 1089.  Thus, "[E]xcept where justified by business reasons, a rule which denies off-duty employees entry to parking lots, gates, and other outside non-working areas will be found invalid."  In theory, however, it might be possible to have such a rule with variations as to whether the activity involved is union or other concerted protected activities under the Labor Act. 

The NLRB recently addressed this concept case involving Amazon, where the rule read: "During off-duty periods (that is, on their days off and before or after their shifts), employees are not permitted inside the building or in working areas outside the building."  Further, the rule also had a provision that got Amazon in trouble, as follows: "[t]his policy may change time to time, with or without advance notice and Amazon reserves the right to depart from the policy when deemed appropriate."

The NLRB ruling stated that the "reserv[ation of] the right to depart" from the off-duty access rule "when deemed appropriate" was unlawful because it granted the employer discretion to decide when and why off-duty employees may access its facilities.  The court cited a case in which the employer's policy prohibiting employees from remaining on its premises after their shift "unless previously authorized" by their supervisor, was similarly found unlawful.

Editor's Note: This case is another example as to how strictly the NLRB regulates employer work rules, particularly during the current administration.  Even if the rule had been written lawfully in the eyes of the NLRB, the employer can still run into trouble should it discriminate against union activities or other concerted activities even under the lawfully written rule.  These concepts are important to remember as many employers routinely allow off-duty employees to return to the plant interiors, creating discrimination issues should the employer attempt to later apply the rule to union or other concerted activities. 

This article is part of our September 2024 Newsletter. 

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