Legal

NLRB Narrows Employer Property Rights in Key Solicitation Decision

By Jon Hyman

Mar. 7, 2016

One of an employer’s best tools to stave off labor unions and their organizing campaigns is a no-solicitation policy. It keeps employees focused on work during working hours, and keeps non-employees (including, but not limited to, union organizers) off your property and out of your workplace.

Yet, over the past couple of years, the NLRB has narrowed employers’ no-solicitation rights. For example, employer email systems must now be open for union-related activities during non-working time. 

What about low-tech solicitations? Conventional wisdom used to be that employers could prohibit solicitations in work areas during working time and non-working time. Does this work-area rule still hold?

According to last week’s Dish Network decision [pdf], the NLRB shifted the discussion from working areas to working time. 

In Dish Network, the NLRB considered the following no-solicitation policy:

In the interest of maintaining a  proper business environment and preventing interference with work and inconvenience to others, employees … may not distribute literature …of a personal nature by any means, … or solicit for any other reason during work time or in work areas except as specifically authorized in advance by a vice president or higher. Employees who are not on work time ([e.g.] …on lunch or break) may not solicit employees who are on work time.

Until recently, I would have told you that such a policy was perfectly legal under the NLRA. Under today’s NLRB, however, this policy is a no-no.

The Solicitation in the Workplace policy is unlawful. Its blanket prohibition of all work area solicitations, including those work area solicitations that occur during non-work time, is unlawful. This policy also unlawfully requires obtaining management’s approval before embarking on such solicitations.

So, employers, it’s time to dust off your employee handbooks. If you haven’t reviewed your handbook in a year or more, this case serves as a good reminder that our labor and employment laws operate in constant flux, and our handbooks must reflect and keep up with those changes. Now, go read your no-solicitation policy (and the rest of your handbook), and call your friendly neighborhood employment lawyer for that update.

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

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