Guidelines for a valid no-solicitation/no-distribution policy

Authored by Fiona W. Ong at Shawe Rosenthal
May 3rd, 2018


Guidelines for a Valid No-Solicitation/No-Distribution Policy

This blog was written by Fiona Ong at Shawe Rosenthal, author of our Maryland Human Resources Manual. You can find the original blog post here and their Labor & Employment Report newsletter (which is excellent) here.

 

Many employers would like to ensure that employees focus on their work during their working time – after all, that’s what they’re being paid to do! One way employers attempt to prevent distractions is by implementing a policy that prohibits employees from soliciting their co-workers (Buy cookies! Participate in this raffle! Come to my church supper! Join a union!) or giving them written materials to read while at work.

Because solicitation and distribution can involve union-related activity or other activity protected by the National Labor Relations Act, these policies are of particular interest to the National Labor Relations Board. This is true even for non-unionized employers, because the Act protects any concerted activity by employees regarding their terms and conditions of employment – including conversations, email discussions, and social media activity.

A recent case provides a good reminder about the parameters of a valid no-solicitation/no-distribution policy. In Dish Network, LLC v. NLRB, the U.S. Court of Appeals for the Tenth Circuit found that the employer’s termination of an employee for violation of an illegal no-solicitation policy violated the National Labor Relations Act. This leads to the question – what are the rules that apply to no-solicitation and no-distribution policies?

According to the National Labor Relations Board, the following guidelines apply:

  • Employees may be prohibited from distributing any materials during his or her working time. “Working time” includes all time during which an employee is assigned to or engaged in the performance of job duties, but does not include scheduled breaks or meal periods during which time the employee is not assigned to or expected to perform any job duties. In addition, it does not include the time before and after the employee’s shift.
  • Regardless of whether they are on working time, employees may be prohibited from distributing any materials in working areas. “Working areas” include all areas where work is actually performed, but does not include areas such as break rooms, parking lots, locker rooms, and employee cafeterias.
  • Employees may be prohibited from soliciting another employee during his or her working time or during the other employee’s working time.
  • For health care and retail employers, employees may be prohibited from soliciting another employee at any time in certain working areas (such as patient care areas or retail sales floors).
  • Non-employees do not have to be allowed to solicit employees or distribute written material on Company property. At any time. Ever.

Federal complete

The 2018 Federal Pro HR Library includes six hard-copy books and online access to Employee Benefits — An Employer's Guide, Workplace Safety and Health Compliance Manual, An Employer's Guide to FMLA and ADA, Hiring Firing and Discipline Manual, Wages and Hours — An Employer's Guide and Employment Verification: Immigration, Form I-9, and E-Verify.

These six publications will help you answer questions such as: