By:  Kara M. Maciel and Evan Rosen 

In recent weeks the Obama Administration’s National Labor Relations Board (the “Board”) has been very active in soliciting public comments and amicus briefs on a wide range of decisions and proposed regulations that could drastically change the labor relations landscape. One of these topics are the rules surrounding the scope of union solicitation on a non-unionized employer’s private property. 

We have received many inquiries from our clients about the Board’s review of whether to change the solicitation rules. In light of the renewed focus on union solicitation, we want to remind you what the current rules state and what action steps the hospitality industry can take to prevent and respond to a union solicitation.

Under federal labor law, solicitation rules differ for employees and non-employees. As a general rule, employers may prohibit non-employees from engaging in solicitations or handbilling on private property. There are, however, two exceptions to this general rule. First, non-employees may have a right to access an employer’s private property if there are no other available channels of communication for which it can communicate with employees. Thus, if your employees live on company premises, this could be an issue to look into. The second exception is where the employer discriminates against the union by allowing other groups to solicit on its premises. Accordingly, if your company allows other groups – even charitable or civic organizations – to solicit on company property, you are opening the door to the union as well. 

The stated purpose of the National Labor Relations Act is to protect employee rights, and in particular, their right to engaged in protected concerted activity. Thus, employees are given greater freedom to solicit on company property than non-employees. The current rule is that an employer may restrict an employee from soliciting other employees except during working time and working locations. Thus, an employee may only solicit other non-working employees if he or she is off the clock and in a break room or non-working space. 

There are some important steps that hospitality employers should take to prevent and respond to a union solicitation effort:

1)         Draft and implement a legally enforceable no-solicitation policy.

  • Insert the policy in your employee handbook.
  • Place no-solicitation signs next to every entranceway.
  • Consult labor counsel to ensure the policy is not overly broad, and thus illegal.

2)         Enforce the no-solicitation policy consistently and uniformly.

  • Your company may not permit charitable, civic, or religious organizations to solicit on its premises if it also wishes to restrict union solicitation.
  • Enforce the policy evenhandedly to all groups wishing to solicit.

3)         Provide labor relations training to all managers.

  • Managers must know how to recognize union organizing.
  • Managers must know what to do if they see signs of union organizing.

4)         If non-employee union solicitation occurs, politely ask the solicitor to leave the premises. 

  • If the solicitor refuses to leave, call security.
  • Consider whether to communicate with your employees to counteract the union’s message.
  • Contact labor counsel immediately to develop a comprehensive strategy to thwart the union organizing effort.

Knowing the rules of the game and these proactive steps that you can take to protect your and your employee’s privacy rights can be beneficial to effectively responding to a union organizing and solicitation attempt.