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:
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