United States: Limiting Off-Duty Access To The Hotel

Last Updated: March 5 2015

Many hospitality employers are surprised to learn that employees have a right under federal labor law to access the exterior, nonworking areas of the hotel property in their off-duty hours for union or other protected concerted activities. Hospitality employers are also surprised to learn that handbook rules prohibiting any off-duty employee access or conditioning off-duty employee access on manager approval are unlawful.

In fact, the legality of hotel policies restricting off-duty employee access is a complicated area of federal labor law. But you do have some options when it comes to implementing lawful rules restricting off-duty employee access. Keep in mind that any rules on off-duty access must be clearly stated in the employee handbook and take into account the nuanced requirements of federal labor law.

Here's an overview.

Exterior Areas Of The Property

The National Labor Relations Board (NLRB) has long held that employees have a presumptive right under federal labor law to access the exterior areas of the employer's property to engage in union activities or other protected concerted activity. Exterior areas of the property include parking lots, outside break areas, smoking areas, and sidewalks near the hotel entrances. For hotels, exterior areas also include the "porte-cochere," the covered area in the driveway where guests briefly park their cars to check into the hotel or to unload their luggage.

Off-duty employees who are engaging in concerted activity, for example distributing handbills regarding working conditions, have a legal right to be there. You cannot prohibit this type of off-duty employee access without "special circumstances," which is a high bar under federal labor law. A hotel employer's generalized concern about off-duty employees coming into contact with guests or customers is not a "special circumstance" that warrants prohibiting exterior property access for off-duty employees, or ejecting off-duty employees from the exterior areas of the property.

But only off-duty employees have the right to access the exterior areas of the property for union activity. The right does not extend to third parties, such as union business agents or outside union organizers.

Interior Areas

Employers can presumptively maintain a rule that prohibits employees from accessing the interior of the property, provided that the rule 1) is clearly disseminated to all employees; and 2) applies to off-duty employees seeking interior access for any purpose, not just for union activity.

The NLRB considers any policy that prohibits off-duty employee access without distinguishing between exterior and interior property areas to be overbroad and unlawful. For example, the board will find any rule that bans all off-duty employee access to the "property" or to the "premises" to be unlawful. The board believes these terms are too vague and overbroad, and that employees may interpret these terms to include the exterior areas of the property.

Further, the policy must be "clearly disseminated" to all employees. Practically speaking, this means the policy must be stated in an employee handbook. A verbal policy or undocumented historical practice will not meet the NLRB's requirements.

Even if the rule is otherwise lawful, the NLRB holds that an employer cannot issue a new access rule in response to union activity. In other words, if you do not already have a rule on off-duty access in place, you cannot implement one once you learn that union representatives have visited the facility, or that an employee is soliciting coworkers to join a union.

Can You Require Manager Approval?

A common policy within the hospitality industry is to condition all off-duty employee property access on the express approval of the hotel manager or the senior manager on duty. This type of policy is not motivated by union animus, but rather is a matter of reasonable operational oversight. Naturally, many hotel managers want to know if an off-duty employee is on the premises, and for what purpose. Hotel managers know that off-duty employees being on hotel grounds can lead to lost revenues, such as free beverages and food among friendly coworkers. It can also result in over-socialization between on-duty and off-duty employees, which can detract from the guest experience.

Unfortunately, the NLRB holds that "manager approval" policies are overbroad and violate federal labor law. In the board's view the problem with these policies is that they reserve too much discretion and allow managers to decide when and why employees may access the property. The NLRB believes that hotel managers will utilize their discretion to allow off-duty employees to access the property for some purposes, but will not allow off-duty employees to access the property for union activity or other protected concerted activity.

What About Off-Duty Contractors?

Hotel operators frequently utilize contractors for maintenance, laundry, or food-service work. In some cases, the NLRB has held that contractors who work at the hotel may access the exterior areas of the hotel for union activities or other protected concerted activities. Contractors are not "employees" of the hotel, but they are still "employees" of the contractor and, thus, entitled to certain legal protection under the National Labor Relations Act.

Is A Variation Possible?

The current state of the law allows hospitality employers to ban off-duty employees from accessing the hotel interior under any circumstances. This is because allowing off-duty interior access for some reasons but not others may lead to claims of union discrimination.

But a recent NLRB decision in the healthcare sector suggests another possible type of policy. In Sodexho America the board approved an off-duty access rule at a hospital that prohibited off-duty employees from accessing the hospital interior, except when obtaining their own medical care or when visiting hospital patients. In that case, the board held that the employer lawfully allowed the off-duty employees to use its medical facilities on the same terms as other members of the general public, but lawfully prohibited the off-duty employees from accessing the hospitality interior for any other purpose.

The Board has not yet extended this holding to the hospitality industry so it's not entirely clear whether a hotel employer can prohibit off-duty employee access to the hotel, except when the employee is accessing the hotel's amenities "in the same manner as any other guest or customer." Nor is it clear whether a hospitality employer can limit the number or frequency of visits by off-duty employees. Nevertheless, the recent Sodexho decision gives hospitality employers a legal foothold to implement a similar rule, and argue for its enforceability if challenged.

Our Advice Regarding Access To Property

The NLRB applies tough rules regarding off-duty employee access. You should review the specifics of your off-duty employee access rules to ensure that they are precisely worded to comply with federal labor law while still protecting operational needs. Remember, you forfeit any right to implement lawful off-duty access rules once organizing activity has commenced, especially in light of the activist nature of the current NLRB. Don't maintain access rules that are predicated solely on manager discretion.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Fisher Phillips LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Fisher Phillips LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions