When Was the Last Time You Dusted Off Your Non-Solicitation and Distribution Policy?

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June 18, 2014

Many employers, in an effort to improve workplace productivity, efficiency and safety, implement so-called “Solicitation and Distribution of Materials” policies. These policies generally prohibit non-work-related communications by employees during work time, as well as distribution of non-work-related materials in work areas [or distribution in non-work areas by employees during work time]. These policies may also have a secondary effect of decreasing the likelihood of successful union organizing. For this reason, such policies have historically been scrutinized by the National Labor Relations Board (Board).

Recently, the Board gave employers good reason to dust off employer Solicitation and Distribution of Materials policies. Earlier this month, in Food Services of America, Inc., 360 NLRB No. 123, the Board concluded that the following policy violated the National Labor Relations Act:

Solicitation discussions of a non-commercial nature, by Associates, are limited to the non-working hours of the solicitor as well as the person being solicited and in non-work areas.

(Working hours do not include meal breaks or designated break periods)[underscore added for emphasis].

According to the Board, the above policy language is problematic, because the language could be interpreted to mean solicitation is not allowed unless employees are on nonworking hours AND in non-work areas. In other words, notwithstanding the employer’s position that the policy is intended to permit solicitation in work areas between employees not engaged in work, the Board struck it down – intent doesn’t matter. As the Board stated in its decision, the “standard affirmative remedy” for maintenance of unlawful work rules is immediate cancellation of the offending rules, and posting/dissemination of corrected rules. However, employers are also generally required to post a standard notice of union rights’ poster in conspicuous locations throughout the workplace, for 60 days. For most non-union employers, this requirement is not generally well received by management.

In light of the Board’s decision in Food Services of America, Inc., it’s time to dust off that old solicitation and non-distribution policy. Remember, solicitation is allowed in work areas, as long as both employees involved are not supposed to be working at the time.

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