Many employers have "no solicitation" rules. Such rules typically prohibit employees from engaging in solicitation activities on working time and in working areas, and non-employees from all solicitation activities on an employer's premises. In general, such rules are legal and enforceable. The enforceability of such rules received a strong boost from the United States Supreme Court's decision in Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992). The Court in Lechmere decided that in most circumstances, an employer's no solicitation rule may lawfully exclude non-employees, including non-employee union organizers, from engaging in solicitation or literature distribution activities on the employer's premises.

     There are, however, some significant limits on the scope, adoption, and enforcement of no solicitation rules. These limitations, and a case that highlights the finer points of some of the limitations, are discussed in this article.

     Scope. An employer's no solicitation rule may not prohibit or limit statutorily protected activities. In particular, Section 7 of the National Labor Relations Act protects employees' rights to engage in concerted activities for their mutual aid and protection and to form, join, or assist labor organizations. Pro-union solicitation activities are such protected activities. Thus, a valid no solicitation rule may not be worded too broadly. For example, a rule which provided "No employee or other person shall engage in any solicitation or literature distribution activities on the Company's premises at any time" would be invalid because it would prohibit employees from engaging in solicitation activities during their non-working time on the employer's premises. Such a rule might be lawful as applied to non-employee solicitors, but it would be unlawful on its face and as applied to employee solicitors. The most common protected activities that might be affected by a no solicitation rule are the solicitation activities of employees undertaken before shifts start, after shifts end, and during lunch breaks and other breaks from work. These are all non-working times, and if the employees engage in solicitation activities to or with other non-working employees, the activities are protected by Section 7 of the NLRA. Note particularly that a paid work break is considered non-working time and therefore time during which an employee may engage in solicitation activities, even though the employee is "on the clock" during that time. The most common mistake that employers make in this area is having poorly-worded no solicitation rules which end up being viewed by the NLRB and courts as overbroad and therefore unlawful. An employer that has an invalid or poorly-worded no solicitation rule should revoke the rule, adopt a clearly-worded, valid no solicitation rule, and specifically inform the employees of the change in the rule.

     Adoption. An employer may not adopt or expand a no solicitation rule, even an otherwise valid no solicitation rule, in response to union organizing activity or other employee concerted activity. The time for an employer to adopt or expand a no solicitation rule is before employee or union organizing activity starts, not after such activity starts.

     Enforcement. Most litigation concerning no solicitation rules arises out of claims of discriminatory enforcement. An employer may have a facially valid no solicitation rule, but how has the employer actually used or enforced the rule in the past? Is the employer's current enforcement of the rule fair and consistent with the employer's past practice? The law provides that an employer may not discriminatorily enforce an otherwise valid no solicitation rule. For example, an employer may not allow pro-employer solicitations while prohibiting similar pro-union solicitations. An employer may not allow some non-employee solicitations on its premises while prohibiting similar non-employee union solicitations on its premises. In most discriminatory enforcement cases, the key inquiry is whether the current soliciting sought to be prohibited by the employer is similar to the soliciting prohibited in the past. There are two recognized qualifications to the prohibition against discriminatory enforcement of no solicitation rules. First, if an employer has previously allowed a "small number of isolated beneficent solicitations," then that past practice does not require the employer to allow union solicitations. Second, if an employer has previously allowed solicitations directly related to the employer's business functions and purposes, then that past practice does not require the employer to allow union solicitations.

     A case that highlights the finer points of these legal principles is Lucile Salter Packard Children's Hospital v. NLRB, -- F.3d -- (D.C. Cir. October 11, 1996). In that case the NLRB and the Circuit Court of Appeals assessed a variety of hospital practices concerning solicitations and found that although some practices were legal, the hospital had discriminated in its enforcement of its no solicitation rule against union organizers who sought to distribute pro-union literature inside the hospital. The hospital had a facially valid, written no solicitation rule which prohibited all non-employee solicitations on hospital premises. Nevertheless, the hospital had regularly allowed various non-employee groups to conduct solicitations and other activities from tables and booths outside of the hospital's cafeteria. When union organizers seeking to solicit the hospital's nurses tried to set up a table outside of the cafeteria, the hospital prohibited the organizers from doing so. The union then filed an unfair labor practice charge against the hospital. The various hospital past practices reviewed and assessed by the NLRB (and the Court of Appeals, which agreed with the NLRB in all respects) were as follows:

     1. Employee fringe benefit solicitations. The hospital regularly allowed solicitations by non-employee representatives of the tax-sheltered annuity plans and health insurance plans offered by the hospital as part of its benefits package for its employees. The NLRB found that these solicitations were directly "related to the hospital's business functions and purposes" and did not, therefore, constitute a basis for finding the hospital guilty of discriminatory enforcement of its no solicitation policy against the union solicitors.

     2. Sales of medical textbooks. The hospital regularly allowed vendors of medical textbooks to display and sell their products in the hospital. The NLRB found that this past practice was a part of the hospital's practice of educational enhancement of its employees and not a precedent for union access to the hospital's premises. The court noted that blood drives and displays of pharmaceutical textbooks would fall in the same category for a hospital.

     3. Credit union and insurance solicitations. The hospital regularly allowed solicitations by non-employee representatives of a local credit union and a local insurance company. The NLRB found that these were commercial activities not part of the hospital's employee fringe benefit package and not intimately related to the hospital's enhancement of its health care services. The credit union and the insurance company were just "non-employee commercial organizations" not directly related to the hospital's functions. The hospital argued that even though it did not fund or provide credit union membership to its employees, such membership was important to its employees and should be viewed as a part of the hospital's functions. The NLRB rejected that argument and ruled that there was a significant difference between hospital-provided fringe benefits and other services or products optionally purchased by employees. Employer-provided fringe benefits are directly related to the employer's business, but other products or services only "endorsed" but not paid for by the employer are not. The NLRB noted that labor union membership might be as important to the employees as credit union membership or insurance services, so the hospital could not validly allow one and prohibit the other on the basis of hospital management's view of the relative "importance" of one service or another.

     4. Family services solicitations. The hospital regularly allowed non-employee solicitations by a local child and family services organization. The organization distributed information and referrals about local family care resources to the hospital's employees. Although not as commercial as the credit union or insurance solicitations, the NLRB ruled that these solicitations were not fairly distinguishable from the union's solicitations. In particular, the NLRB noted that these solicitations did not fit within the "small number of beneficent solicitations" exception because "regular" solicitations (about once every two months, for example) were not a "small number" of solicitations (once or twice a year, for example). The legal principle here is that if an employer can "regularly" open its doors to non-employee solicitations, then it can open its doors at least a few times to non-employee union solicitations.

     5. Commissioned vendor sales. The hospital allowed some non-employee vendors to sell various products (flowers, jewelry, uniforms) outside the hospital cafeteria for a commission of 10%-15% of the vendors' sales. The NLRB found that although the hospital's own direct fund-raising activities would be directly related to the hospital's business functions and purposes, this commissioned selling by outside commercial vendors was not directly related to the hospital's business functions. Simply put, the outside vendors' sales were not intrinsic to the hospital's operations, so this past practice warranted union access to the hospital's premises.

     The final and best view of the Packard case is this: The hospital had a written, broad no solicitation rule, but the hospital regularly allowed many different types of solicitations on its premises. Clearly, the hospital did not follow its own written rule. Instead, the hospital apparently made exceptions to its no solicitation rule whenever it felt like it. The law prohibits the discriminatory enforcement of such a rule against non-employee union solicitors.

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Dated: January 14, 2000