Someone’s Knocking: If It’s the Union, Don’t Let Them in

The National Labor Relations Act protects employee solicitation of other employees and distribution of literature to form or join a union or to engage in other “concerted” activities. However, employers have the ability to regulate such solicitation and distribution in the workplace under certain circumstances. In general, employers can permissibly have policies that prohibit the following:

• Prohibit employees from soliciting other employees in the workplace or distributing literature during “working time.” Working time includes the time when both the employee doing the solicitation and the employee being solicited should be working. Working time cannot include scheduled breaks, times before or after a shift, or other times when an employee is not working or is not supposed to be working.
• Prohibit employee distribution of literature in “working areas” at all times. Working areas would not include employee break rooms/lounges or parking areas.
• Prohibit employee solicitation and distribution at any time in the health care industry in “immediate patient care areas” such as patient rooms and lounges, as well as examination and operating rooms.
• Prohibit solicitation and distribution altogether from non-employees and prohibit non-employees from coming onto the property.

While all the foregoing policies are permissible, they can immediately become impermissible if adopted but not rigidly enforced. A solicitation and distribution policy that is inconsistently or discriminatorily enforced, or which allows non-employees to engage in such activities on a selective or discriminatory basis, could give non-employees, such as union organizers, the legal right to claim that they should also be allowed to engage in such activity at the workplace. For example, if an employer allows employees to sell Girl Scout cookies during working time, it is potentially weakening its ability to enforce its solicitation and distribution prohibitions when union or employee concerted activity is involved. Similarly, if an employer allows non-employees to come onto its property to solicit its employees for non-work related causes (except for limited charitable causes), the employer may not legally be able to reject an access request from a union organizer.

An employer that allows non-employees and outside groups to use its facilities (such as an auditorium or cafeteria) should monitor the activities of such non-employee groups so that they are consistent with its solicitation and distribution policy. The mere fact that an employer allows non-employees to use a public space for certain events does not mean that employees or non-employee groups can use the space to solicit support for a union or for other concerted activity. However, an employer that allows a group to conduct a fundraiser for some political or social cause on its property may face a union request for similar access to its property to conduct employee solicitation during a union organizing drive.

In order to avoid unwittingly giving unions an open invitation to their facilities, employers must be mindful of the following takeaways:

• Implement a lawful solicitation and distribution policy
• Consistently enforce the policy among employees
• Consistently enforce the policy against non-employees and outside groups
• Ensure that third-party use of facilities are administered consistently with policy
• Ensure that any solicitation by charitable groups are limited in number, relate to the business purposes of the employer, and are carried out by the employer’s employees during non-work time and in non-work areas with minimal involvement of outside individuals