Many employers assume that they have broad authority to control off-duty employee access to employer property. A recent ruling by the National Labor Relations Board (NLRB) may require a second look at “No Loitering” policies.
Earlier this month, the NLRB determined that a no loitering policy maintained by a Vancouver restaurant, Burgerville, was a violation of the National Labor Relations Act’s (NLRA) protection of employee rights to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, which includes the right to handbill. The Burgerville employees had organized and decided to pass out handbills promoting their union and their position on wages at the front entrance of the Burgerville restaurant in Vancouver, Washington. They did so, while off duty, without deterring customers from entering or existing the restaurant.
In response, an assistant manager told the employees that they could not handbill at the front entrance of the store and that they needed to leave and move to a public sidewalk. When the employees persisted, the manager threatened to call the restaurant’s general manager. While the employees were not disciplined, they were left with the impression that continuing to pass out the handbills could result in discipline. The next day, one of the employees received a text message with a photo of the “no loitering” policy, which stated “at no time are you to loiter around the premises when you are off duty.”
The NLRB held that “an employer’s rule denying access to off-duty employees to all areas of its premises violates the Act unless there are legitimate business concerns to justify the rule or policy.” The Board further found that the rule was overbroad and ambiguous, because it did not define “loiter” or “hang around,” and could reasonably be interpreted to prohibit employees from engaging in protected activities, such as handbilling. Also, the rule contained no exception for protected activities like handbilling. The NLRB’s opinion is available here.
Employers with “no loitering” policies should review them to make sure they either state a legitimate business concern or make an exception for protected activities. Consistent enforcement of those policies will help employers avoid run-ins with the NLRB.
