NLRB Finds Hospital’s Off Duty Access Policy Overbroad

The National Labor Relations Board has affirmed guidelines regarding the rights of off duty employees to enter their employer’s facility. In USC University Hospital, the Board ruled that USC University Hospital violated the National Labor Relations Act by maintaining a rule that prohibited off duty employees from entering the hospital unless they were visiting patients, were patients themselves, or were conducting “hospital related business.” Between May 5, 2010, and June 25, 2010, four separate employees were suspended or warned for violating the rule.

Under Tri-County Medical Center (NLRB 1976) off duty access prohibitions are valid only if they: 1) limit access solely to the interior of the facility, 2) are clearly disseminated to all employees, and 3) apply to off-duty access for all purposes, not just union activity. The NLRB ruled that the “hospital related business” section of the policy was extremely overbroad, and effectively gives the hospital “unlimited discretion to decide when and why employees may access the facility.” As such, it does not limit off duty access for all purposes and is invalid under the third prong of the Tri-County Medical Center test.

Board Member Brian Hayes dissented, stating that the Board’s current holding effectively prohibits a hospital from maintaining a valid off duty access rule “if it also allows employees to engage in innocuous activity such as picking up paychecks, completing employment related paperwork, or filling out patient information.”

Employers should consider the USC University Hospital and Tri-County Medical Center rules when crafting off duty access policies. MSEC Labor Relations staff are here to assist in crafting such guidelines.