Earlier this week, the NLRB continued its scrutiny of “overly broad” employer policies. This time the NLRB held that a hospital’s “No-Access” rule for off-duty employees was unlawful because it gave too much discretion to the employer to determine what access was permitted. The hospital’s policy was not at all that unusual and provided:
Off-duty employees are not allowed to enter or re-enter the interior of the Hospital or any other work area outside the Hospital except to visit a patient, receive medical treatment or to conduct hospital-related business.
An off-duty employee is defined as an employee who has completed his/her assigned shift.
Hospital-related business is defined as the pursuit of the employee’s normal duties or duties as specifically directed by management.
Any employee who violates this policy will be subject to disciplinary action.
Too Much Discretion Makes the Rule Unlawful
The NLRB found fault with the “to conduct hospital-related business” exception.
According to the Board, allowing employees to enter for hospital-related business (as that phrase is defined in the policy) gave management an unacceptable level of unlimited discretion that possibly could be used to infringe on employees’ rights under the NLRA.
This holding followed on the heels of a similar case involving another hospital’s No-Access rule where an exception for “employer-sponsored events” was held to permit the hospital too much discretion in defining what events were employer-sponsored. The NLRB said in that case, that the rule was “egregious” because it was like telling employees that “you may not enter the premises after your shift – except when we say so.”
Not surprisingly, Member Hayes dissented from both decisions, writing in the first one, “What is egregious is the NLRB’s decision – not the hospital’s rule.”
So, When Is a No-Access Rule Valid?
The NLRB in making these two decisions on hospital No-Access rules looked back to the standards established 36 years ago. A hospital’s rule will be valid only if:
- It limits access only to the interior and other working areas of the hospital;
- It is clearly disseminated to all employees; and
- It applies to all off duty employees seeking access to the hospital for any purpose and not just to those engaging in union activity.
Take a Look at Your No-Access Rule
It is very common for employers to have a No-Access rule. With these two decisions it may become common for employers’ rules to be challenged especially if employees are disciplined during a union campaign. Take a look at your rule. As these decisions indicate, to pass muster with the current NLRB, “No Access” rules must uniformly prohibit off-duty employee access and be completely free of management discretion.
Reference: USC University Hospital and National Union of Healthcare Workers, (358 NLRB No.79, July 3, 2012) and Saint John’s Health Center, (357 NLRB No. 179, December 30, 2011).
If you have any questions, please contact Steve Lyman at slyman@wp.hallrender.com or your regular Hall Render attorney.
