By Katie Loehrke
The National Labor Relations Act (NLRA) allows employers to prohibit solicitation by employees during work time. However, generally speaking, employers may not prohibit employees from soliciting during non-work time, even if the employee is on company property. As a result, employers may not have a blanket rule barring any solicitation by employees.
While the extent to which employee solicitation may be restricted is limited, employers may ban solicitation by non-employees on company property. This is often what employers intend to address when they post “no solicitation” signs on the doors or windows of their establishments. However, recent guidance from the National Labor Relations Board (NLRB) reminds employers that such a posting could appear to prohibit all solicitation by employees, which could result in a violation of the NLRA.
Consider the circumstances
How a “no solicitation” posting will be interpreted will depend on certain factors, many of which were discussed in a recent NLRB advice memorandum. In the case considered, the employer had a simple “no solicitation” sign on the door or window of many of its retail stores. The signs faced outward, and no signs were present on the rear entrance doors, which were the primary entrance and exit for employees. The employer also had a detailed solicitation policy for employees.
Given the specific facts in this situation, the NRLB’s Division of Advice decided that employees would not likely believe that the “no solicitation” signs applied to them, but rather to customers. However, that’s not to say that such a sign couldn’t be considered an unfair labor practice if the circumstances were different. For example, the NLRB may have decided differently had the employer posted such a sign in response to a recent labor campaign, had it not had a clear and valid solicitation policy, or if the signs were posted in a manner or location that led employees to believe that the message applied to them.
Employers who wish to be extra cautious may want to specifically indicate on such signs that the prohibition applies only to solicitation by non-employees.
Consistent enforcement
Policies that prohibit solicitation by employees during work time can be perfectly acceptable, as long as they are enforced consistently. Such a policy shouldn’t forbid certain types of solicitation while allowing others in the workplace. For example, employers cannot allow employees to solicit for various personal causes but refuse to allow employees to share union information or religious information. The former may qualify as an unfair labor practice under the NLRA, and the latter may qualify as religious discrimination.
Katie Loehrke is a human resources subject matter expert and editor with J.J. Keller & Associates Inc., a nationally recognized compliance resource firm. Loehrke specializes in employment law topics such as discrimination, privacy and social media, and affirmative action.
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