On July 3, 2012, in Sodexo America LLC, the NLRB released a decision finding that a hospital's off-duty employee access rule violated the NLRA. The key issue in the case was whether the hospital unlawfully maintained a rule that permitted off-duty employees to enter the hospital only if they are visiting patients, are patients themselves or are conducting hospital-related business.

Respondent USC University Hospital (Hospital) operates an acute-care hospital in Los Angeles and subcontracts its cafeteria and food services operations to Sodexo America LLC (Sodexo). The Hospital maintained a no-access policy providing that off-duty employees are not allowed to enter or re-enter the interior of the Hospital or any other work area outside the hospital except to:

Both the Hospital and Sodexo posted the rule, and the Hospital required all employees working at the hospital, including those of its subcontractors, to comply with it. Although employees entering the Hospital as visitors or patients did so as members of the public, those entering for hospital-related business did so as though they were on-duty, using employee entrances and badges, and were not required to sign in as visitors.

The Hospital placed an employee on leave for violating the no-access rule and orally warned three other employees for violating the policy. In response, the NLRB Acting General Counsel (General Counsel) filed a complaint alleging that:

An NLRB administrative law judge (ALJ) held that the no-access rule did not violate the NLRA. Both the General Counsel and the Hospital filed exceptions to the panel (Board) heading the NLRB's judicial functions.

In a 2-1 decision, with Member Hayes dissenting, a three-member panel of the Board reversed the decision of the ALJ, finding that the hospital's no-access rule exception for "hospital-related business" violated the NLRA.

The Board noted that, under Tri-County Medical Center, an employer's rule barring off-duty access to a facility is valid only if it:

The General Counsel argued that the no-access policy violated the third prong of the test because it did not deny access for all purposes, and instead allowed access for visiting patients, receiving care and hospital-related business.

The Board agreed with the General Counsel with regard to the hospital-related business exception, noting that this particular policy allowed the Hospital "unlimited discretion" to decide when and why employees may access the facility. Citing its recent decision in Saint John's Health Center, where the Board held that a policy allowing off-duty employees to visit the hospital for employer-sponsored events violated the NLRA, the Board concluded that the Hospital's policy also violated the NLRA because it did not uniformly prohibit access to off-duty employees seeking to entry to the property for any purpose.

However, the Board rejected the General Counsel's argument that the exceptions for visiting patients and receiving care violated the Tri-County test. Specifically, the Board noted that entry for these purposes is:

The Board also noted that an individual seeking to visit a patient has no alternative to seeking access to the particular facility where the patient is staying. Although recognizing that alternative medical providers might be available, the Board declined as a matter of policy to require that health care employers limit their employees' access to medical care to comply with Tri-County.

With regard to the General Counsel's allegations of unlawful treatment of employees, the Board stated that there was no evidence to support the ALJ's finding that the employees were disciplined for engaging in union activities. The Board remanded to the ALJ with instructions to reopen the record to determine whether the employees had engaged in Section 7 activity.

In dissent, Member Hayes argued that the Board's interpretation of the Tri-County test:

In Saint John's Health Center, the Board majority suggested it would interpret the third prong of the Tri-County test to require employers to impose rules granting no or complete access for off-duty employees. This decision affirms that the Board majority finds only blanket bans on off-duty employee access to interior working areas presumptively valid and will likely invalidate any other kind of off-duty employee access limitation. Employers that have policies permitting access by off duty employees for business related activities should consider revising their policies in light of this decision.

The Board's analysis of the Hospital's exceptions for medical care and visiting patients indicate that it may permit express and limited exceptions to its stringent application of Tri-County where employees are entering a facility for reasons unrelated to their employment. In those situations, concerns regarding protected activity in Tri-County are not implicated.

As the dissent points out, the Board majority's rationale may require employers that have no-access rules to bar off-duty employees from the premises for any purposes remotely related to employment such as collecting paychecks or filling out employment forms.