In a 2-1 decision, the (National Labor Relations Board) struck down a Marriott property’s policy prohibiting off-duty employees from accessing the hotel property without a manager’s approval. In doing so, the board evaluated Marriott’s rule in light of well-established case law dating back four decades.
Many hotels maintain off-duty access policies that limit but do not prohibit employees from accessing the hotel property during off-duty hours. The policy might require an employee to obtain advance permission from management and/or limit access to employer-sponsored events. Such a policy seems reasonable.
The hotel or resort might want to grant access to employees as an employee benefit. Employee discounts, access to restaurants, golf courses, spa facilities and ski slopes, for example, are valuable employee benefits. Of course, the hotel needs to balance legitimate business concerns, such as maintaining the security of its premises and guests, as well as assuring its guests have ready access to facilities.
Under that 1976 case, the NLRB established a three-part test for whether off-duty access restrictions are legal. For an off-duty access rule to be valid under that test, the policy must:
1) limit access only to the interior of the facility and other working areas;
2) be clearly disseminated to employees; and
3) apply to any off-duty employee seeking access for any reason and not just those engaging in union activity.
In the Marriott case, issued 28 September, the board held that because the rule was not a uniform ban on access but instead gave management unlimited discretion to determine when to permit access, it could lead employees to believe they could not engage in union organizing or other protected activity without a manager’s approval. The board struck down the rule as unlawful and said a “narrow, extremely specific” off-duty access rule might be deemed valid. However, it provided no guidance as to what type of rule is acceptable.
This decision puts hospitality employers in an untenable position. The hotel has one of three options:
1) adopt a policy limiting all off-duty access, even for legitimate reasons such as picking up a paycheck or attending special events;
2) grant employees access to the property without any restrictions; or
3) prepare a policy with narrow exceptions for special circumstances and hope the policy survives legal scrutiny.