What you must know about non-solicitation policies

No solicitation during work time does not mean no solicitation ever

From the perspective of the NLRA, employers may enforce a consistent policy that prohibits employees from engaging in any kind of solicitation during working time. However, the National Labor Relations Board (NLRB) has held that employers may not prohibit employees from participating in solicitation on their personal time, and that may include breaks, lunch periods, and before or after work.

A non-solicitation policy also may ban solicitation entirely in certain areas of an organization. A policy might bar solicitation in a production area if soliciting has the potential to cause a distraction in a working area. However, a policy that bans solicitation on all company property would not be appropriate under the NLRA.

Policies should be specific. If you ban solicitation in certain work areas and/or on work time, define those terms as clearly as possible to avoid misunderstandings. Additionally, the language a policy employs is important. Banning solicitation during employees' work time is different than banning it during “working hours,” “company time,” or “business hours,” all of which may insinuate that solicitation is not allowed at all while an individual is at work (including both working and non-working time). Language such as this may even imply that solicitation is not ever allowed while the business is operating. Any of these interpretations could lead to a violation of the NLRA, so language should be chosen and defined carefully.

Exceptions and limitations

While a non-solicitation policy should be enforced consistently, there are limited exceptions. Employers may allow a small number of charitable solicitations in the workplace without jeopardizing a non-solicitation policy. This is sometimes called the “United Way” exception. Under this exception, an employer could allow a limited number of charitable solicitations for a limited amount of time.

While the NLRA requires employers to allow at least some solicitation on company property, they are not required to allow employees to use company equipment for these purposes. For example, an employer could prohibit the use of company bulletin boards or copy machines for solicitation purposes.

Non-employees and solicitation

Employers do not have to allow non-employees to solicit on their property as long as, in the case of unions:

• The union has reasonable access to employees through other avenues (this condition is usually met as long as the employees are not stationed in a remote location).
• The employer refuses access to all non-employees for the purpose of solicitation (the employer doesn't restrict only union solicitation by non-employees).

Beyond unions

Employers must take care to ensure that their non-solicitation policies are not overly broad or overly restrictive, since such a policy could be unlawful, even without being applied. The construction and enforcement of such policies must be sensitive to the rights of unions and union organizers. But as previously mentioned, unions are not the only parties that can be discriminated against with a poorly constructed non-solicitation policy. Such policies also must refrain from discriminating against other protected classes, including but not limited to members of particular religious, racial, ethnic, gender, or age groups.