Maintaining Valid No-Solicitation and No-Distribution Policies
By: Fredrikson & Byron, P.A.
Provided by World Services GroupMaintaining Valid No-Solicitation and No-Distribution Policies
Published September 3, 2005 - Minnesota, USAEmployers frequently implement no-solicitation and no-distribution of literature policies to help control the workplace and prohibit employees from promoting non-job related causes during work time. These policies also are effective tools for fighting union-organizing campaigns. The National Labor Relations Act governs these policies for all union and non-union employers.
Although there is nothing illegal per se, about maintaining such policies, the National Labor Relations Board has developed a set of highly technical rules regarding their enforceability. For instance, a rule that prohibits solicitation by employees during "work" or "working" time and is consistently enforced is presumptively valid and will be upheld. A rule that prohibits solicitation during "company time," however, is unlawful on its face. The Board has held that the expression "company time" does not clearly convey to employees that they may lawfully solicit while on breaks, lunch, and before or after work.
The Board has issued similar rules regarding distribution of literature policies. A policy that prohibits distribution during "work" or "working" time is valid. Because literature and other materials may create a hazard if discarded in a production area, the Board also upholds policies that prohibit distribution in "work" or "working" areas. Examples include the shop floor, production areas, and other places where employees perform their jobs. Again, the Board has found a distinction between "working areas" and "company property," however. According to the Board, the latter could include lunchrooms, locker rooms, and parking lots, where employees are permitted to distribute written material. Thus, precise language must be used when drafting these policies.
Moreover, a policy that is valid on its face will not be upheld if it is not consistently enforced. With limited exceptions, if an employer maintains a no-solicitation or no-distribution policy, it must prohibit solicitation or distribution for any purpose. An employer may not, for example, allow employees to sell Girl Scout cookies while prohibiting employees from circulating a petition demanding increased wages or more vacation time.
The one exception is the so-called "United Way" exception for charitable solicitations. Employers may allow a small number of charitable solicitations without invalidating an otherwise lawful no-solicitation policy. The classic example is an employer-approved drive to collect donations for a charitable cause such as the United Way. The Board generally will apply the exception if the employer permits only one or two charitable solicitations for fixed periods of time during the year. This exception is extremely limited, however. Employers must be cautious about the number and scope of charitable solicitations they permit, and should contact legal counsel before approving any charitable campaign.
The Board has not decided whether employer policies restricting use of company-provided email will be reviewed pursuant to the same rules that apply to no-solicitation or no-distribution policies. Several cases challenging email policies are currently pending before the Board.
Maintaining valid no-solicitation and no-distribution policies is important for many reasons. Employers violate the NLRA just by having an invalid policy in place, even if no employee is ever disciplined under it. Also, disciplinary action taken against an employee who violates an invalid policy will be set aside. For instance, an employee terminated for violating an invalid no-solicitation policy must be reinstated.
Employers with questions about no-solicitation, no-distribution or email policies are encouraged to contact their employment counsel.
