Workplace-Access Policy Needs a Section 7 Exception: NLRB

The NLRB has ruled that an employer's blanket off-duty workplace-access policy needs a Section 7 exception, explicitly allowing limited access for protected union or labor activities.

If your business has a policy that prohibits off-the-clock socializing or even a blanket policy against social media use, then you may need to add a similar exception for certain activities, pursuant to Section 7 of the National Labor Relations Act.

Here's how a Section 7 exception works and why the NLRB keeps harping on this point:

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Allow Employees Limited Access After Hours

The National Labor Review Board (NLRB) ruled in a recent case that a blanket prohibition on remaining on the premises after a shift must include some exception for protected labor or union activities.

Most small businesses have to allow employees to form collective bargaining units, aka unions, because this activity is protected under federal labor laws. General policies, although not specifically intended to affect union practices, may be illegal if they have the practical effect of preventing employees from participating in union votes, meetings, or other protected activities.

In Piedmont Gardens v. SEIU, a nursing home employer attempted to enforce a policy that prohibited any access to the building for employees both before and after a shift without a supervisor's authorization. The NLRB found that this policy, while general, gave the employer too much discretion about use of the facilities -- which had the effect of preventing union use of the building.

A business can provide that employees are not allowed to use the interior of the building when off-duty for any purpose, but it would be wise to include some Section 7 exception for protected union activity.

Section 7 and Social Media

Off-duty access to the company's facilities isn't the only place where your business might need a Section 7 exception. The NLRB has also been clear that blanket social media policies must respect the protected activity of employees to discuss labor concerns.

You can still fire an employee for bad-mouthing you or the company on Twitter or Facebook, but your social media policy should have an exception for "concerted activity." Not all social media posts by employees about your business is "concerted activity," but it certainly encompasses conversations between employees related to improving:

• Terms,
• Working conditions,
• Wages, or
• Details of employment.

A Section 7 exception in your social media policy may allow for employees to post about these topics without violating company policy.

Be careful when drafting workplace conduct policies. You don't want to run afoul of NLRB rules regarding Section 7 and protected activities.

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Related Resources:

• NLRB Nixes Policy Prohibiting Off-Duty Access to Facility (FindLaw's In House)
• Legal to Ban Recording Conversations at Work? (FindLaw's Free Enterprise)
• Is Your Social Media Policy Valid? (FindLaw's Free Enterprise)
• Twitter's New Guide for Small Businesses: 3 Legal Tips to Add (FindLaw's Free Enterprise)