Many employers in the hospitality industry restrict employee use of their facilities during off-duty time. These policies are usually based on liability and guest relations concerns. Last month in a 2-1 decision, the National Labor Relations Board invalidated a hotel's after-hours access policy because it gave management discretion to make exceptions to the rule.

Marriott International, Inc. involved a challenge to a policy that required employees to depart the premises within 15 minutes after their shifts ended. They were not supposed to return to the hotel and attached entertainment complex while off duty except with the approval of their supervisor. The NLRB majority found that this work rule violates Section 7 of the National Labor Relations Act because it could potentially chill employee concerted activity or organizational activities.

The NLRB said that a complete prohibition on off-hours employee access to the hotel itself might have been acceptable. However, the expansion of the policy to potentially cover the adjoining entertainment complex and parking lots was unreasonable. In addition, the managerial exception to the rule would deter employees who wished to visit the work premises off-duty to discuss union matters or terms and conditions of employment with other employees. The Board rejected Marriott's argument that the policy had never in fact enforced the rule against any Section 7 activity. Its very existence potentially deterred such activity.

The dissenting Board member pointed out that Marriott's policy exception provision was based on legitimate reasons, such as an employee who leaves medication at work and needs to retrieve it. The dissent also notes that the rule was unlikely to deter employees from any protected activity. Regardless, this decision represents the latest in a continuing pattern of NLRB rejection of standard employment policies adopted by non-unionized employers.