NLRB Finds Hospital Rule on Off-Duty Access Lawful BUT Applied in Discriminatory Manner

Ralph F. Abbott. Jr.

In a good-news/bad-news scenario, the NLRB recently held a hospital’s off-duty access rule to be lawful, but went on to hold that the hospital had discriminatorily and unlawfully applied the rule in curtailing off-duty employees from meeting with union representatives in its cafeteria.  The challenged handbook rule limited off-duty employees from entering or re-entering the interior of the hospital (or any work area) except to visit a patient, receive medical treatment, or conduct hospital related business defined as “the pursuit of an employee’s normal duties or duties as specifically directed by management.”

While the NLRB found the rule to be lawful on its face, it also found that it was unlawfully applied in a manner that discriminated on the basis of union activity.  In so doing, the Board noted that the hospital allowed off-duty employees to enter the hospital to apply for transfers, to pick up and drop off pay and scheduling documents, and for attending social events such as retirement parties and weddings or baby showers.

This decision affirms the right of hospitals and other health care providers to carve out medical treatment and patient visits as exceptions to an otherwise lawful no-access rule, and it also shows the importance of ensuring that off-duty access limits are strictly enforced.

This case is also a reminder to all employers regardless of the nature of their businesses that they need to review their employee access rules for legality with labor counsel and ensure that their lawful rules are being applied in a non-discriminatory manner.

The case is Marina Del Ray Hosp., 363 NLRB No. 22, October 22, 2015

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