Home > Legal Updates >

Changes to Solicitation and Distribution Rule Requirements on the Horizon?

An employer’s rule limiting employee solicitation on premises is unlawful because, although it contains an otherwise lawful “working time” restriction, it fails to explain the meaning of “working time,” a Regional Director of the National Labor Relations Board has alleged.  The agency complaint, issued on behalf of the Board’s prosecutor, its General Counsel, may augur a change in the law by the NLRB.

Many employers maintain written “solicitation and distribution” rules (usually in employee handbooks or personnel policy manuals) that restrict the times during which employees may engage in solicitation while on the employer’s premises.  These rules also may circumscribe the times and places distribution may take place.  (Often, they also restrict where non-employees may solicit and distribute on the employer’s premises — generally, nowhere.) 

The Our Way Rule

The range of allowable workplace restrictions is set by the National Labor Relations Board.  Indeed, for almost 27 years, since the NLRB’s decision in Our Way, Inc., 268 NLRB 394 (1983), the “time” parameters of a lawful solicitation and distribution rule have been clear.  A lawful solicitation and distribution rule typically might state that neither solicitation nor distribution may take place among employees while any of the employees involved is on his or her “working time.”  That simple reference has been deemed sufficient to notify employees that their employer’s lawful restriction extends only to periods when they are engaged or supposed to be engaged in actual work tasks (as distinguished from, say, the unlawful phrase “company time,” which could include lunch and other break periods, and periods before and after work). 

Implications of “Working Time” Complaint

It appears the Board’s General Counsel now is seeking to require more for solicitation and distribution rules to pass legal muster.  Recently, a Director of a Regional of the NLRB issued a complaint alleging that an employer’s solicitation rule is unlawful because it does not define “working time.”  If this complaint is litigated and reaches the Board in Washington, D.C., for decision, the Labor Board will be free to adopt the Regional Director’s view and require all employers to include in their solicitation and distribution rules an explanation of “working time” to make clear that it does not include breaks, lunch and other non-work periods.  The purpose and effect of such a change would be to encourage union activity outside of “working time.” 

***

This is just one change that may occur under a newly constituted NLRB affecting solicitation and distribution rules.  The Board’s well-publicized Register-Guard decision also may be overturned.  Register-Guard, among other things, relaxed the Board’s long-held standard for determining whether an employer had applied a facially neutral personnel policy (such as a solicitation and distribution rule) in a discriminatory manner against employees’ union-related conduct.  (See Expansive Right of Employers to Manage Use of Computer Systems Survives Court Review of NLRB Order.)

This is a new and troubling development for employers.  Follow labor law developments at Jackson Lewis’ EFCA & Labor Law Reform Blog (www.efcablog.com).  Jackson Lewis attorneys are available to answer questions about this and other workplace rules.