Employers often maintain policies prohibiting off-duty employees from accessing their facilities. The NLRB has maintained its “Tri-County Medical” rule for nearly 40 years: an employer’s rule barring off-duty employee access to a facility is valid only if it (1) limits access solely to the interior of the facility, (2) is clearly disseminated to all employees, and (3) applies to off-duty access for all purposes, not just for union activity. In two recent decisions, the Board interpreted the third prong of Tri-County Medical to significantly limit employers’ ability to prohibit off-duty access by employees.
In St. John’s Health Center, 357 NLRB No. 170 (2011), the Board invalidated a hospital’s policy that permitted employees to come onto hospital property “to attend Health center sponsored events, such as retirement parties and baby showers.” And in Sodexo, 358 NLRB No. 79 (2012), the Board invalidated a hospital’s rule that permitted off-duty employees access for “hospital related business,” which was defined as “the pursuit of the employee’s normal duties or duties as specifically directed by management.” The 2012 Board majority disallowed this rule because it gave the hospital “free rein to set the terms of off-duty employee access.” Former Member Hayes dissented in both decisions, stating that, under the majority view, an employer cannot maintain a valid off-duty access policy if it permits activities “as innocuous as allowing employees to pick up paychecks or complete employment-related paperwork.”
But as we have blogged about, earlier this year the U.S. Supreme Court in the Noel-Canning case invalidated a number of controversial NLRB decisions–including Sodexo–because they were issued by NLRB panels that included Board members unlawfully appointed by President Obama through his recess appointment power.
On November 19, 2014, the new, and lawfully-empanelled Board considered anew its 2012 Sodexo decision and “reversed” it (Board opinion here) insofar as it invalidated the hospital’s “exception” for conducting hospital-related business. (The Board reaffirmed the earlier holding that employees could validly be permitted on hospital premises to visit patients, or as patients themselves.) The majority reasoned, however, that “this provision is not really an exception at all, but a clarification that employees who are not on their regular shifts, but are nevertheless performing their duties as employees under the direction of management, may access the facility. Although these employees would be off duty by the policy’s definition, they are on duty under the term’s ordinary meaning and within the meaning of Tri-County.”
One has to wonder if this means that the off duty employees are on compensable time (“on duty under the term’s ordinary meaning”) when they return for “hospital related business”? The majority rejected this contention based on record evidence that the off-duty access policy was drafted to avoid employee claims for unauthorized after-shift work.
In any event, the decision itself is not really a “reversal” for practical purposes. The Board majority distinguished the lawful Sodexo policy from one found to be unlawful in Saint John’s Health Center, which allowed access for “[h]ealth center sponsored events, such as retirement parties and baby showers,” because there was no indication that employees would be paid or considered to be working during these events.
The bottom line? Employers still need to draft and administer off-duty access policies consistent with St. John’s Health Center: No off-duty access for employer sponsored events or any other employer-approved purpose. In Sodexo, the “exception” covers only “employees who would understand themselves to be on duty.”