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

By Fiona W. Ong - Shawe Rosenthal LLP

April 27, 2018

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.