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.”Continue Reading NLRB Reverses Sodexo Off Duty Access Decision – a Crack in the Door After Noel Canning…Or Not?

In an ever expanding arc of decisions that extends the NLRA’s protections to a wide range of employee conduct – both on-and off-duty, and in union and non-union settings alike – the NLRB last week decided that merely clicking on Facebook’s “Like” Button was concerted, protected activity. Triple Play Sports Bar, 361 NLRB No. 31 (August 22, 2014).

Triple Play Sports Bar is a non-union employer whose owners had a little difficulty preparing annual payroll tax calculations, and as a result, employees owed state income tax in arrears. One of the employees – not happy at the prospect of back taxes – posted on her Facebook “Status Update,”

Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly‼! Now I OWE money … Wtf‼!

Other employees chimed in with comments of their own (“[the owner] f***** up the paperwork…as per usual”; “[the owner is] such a shady little man. He prolly [sic] pocketed it all from our paychecks…”; “Such an a******”), as did a couple of the Sport’s Bar’s customers. But one employee simply pressed the “Like” button and made no other comments. Company owners terminated the employees for defamation and disloyalty.Continue Reading Facebook “Like” Button – Protected Activity? It Depends on What You “Like”!