AUTHOR: Howard Bloom
Can a sign saying simply, “No Solicitation,” posted on a store window, be found lawful although on its face it could be viewed as unduly restricting employees’ protected union activity? An Advice Memorandum of the National Labor Relations Board’s General Counsel’s Division of Advice indicates the answer is “sometimes,” but a careful reading of the opinion also suggests a strong admonition for most retailers against embracing this shorthand prohibition too quickly.
In general, the National Labor Relations Act permits an employer to maintain a rule prohibiting solicitation by employees during their work time, but not during non-work time. (Retailers also may prohibit solicitation in selling areas during both work and non-work time and health care employers may prohibit solicitation in patient care and treatment areas during both work and non-work time, as well.) A rule containing a blanket prohibition against solicitation (e.g., “no solicitation”) generally is unlawful because it could be interpreted by employees to prohibit employee solicitation during the employees’ non-work time. A rule prohibiting all non-employee solicitation on the premises, however, is lawful.
In the case discussed in the Memorandum, the employer owned a number of retail stores throughout the country. A two-word “no solicitation” sign on the door or window at or near the main entrances used by both customers and employees were posted at several of the stores. The signs faced outward, and at one of the stores, the signs were adjacent to the store’s business hours sign. Although the stores also had rear entrance doors, the signs were not posted on those doors, which were the primary entrance/exit for employees. Significantly, the employer also had a lawful and more detailed employee solicitation rule in its employee Code of Conduct that it provided to every employee. That rule was also posted on the employer’s intranet site.
A union filed an unfair labor practice charge at a Regional office of the Board against the employer, alleging that the no-solicitation signs were unlawful because they stated an overbroad employee no solicitation rule. Following investigation of the charge, the Regional office asked the Division of Advice for an opinion whether or not to issue a complaint.
The Division of Advice viewed the issue presented as whether employees would believe the signs were applicable to them, rather than to the public at large. If they did, the signs would be unlawful because the rule on the sign was overly broad insofar as employees are concerned, even though the employer also maintained a lawful employee no-solicitation policy in its employee Code of Conduct.
The Division of Advice decided that employees would believe the signs were applicable to the general public, and not to employees. It relied on the following factors:
- The signs faced outward.
- The signs were located at the storefront doors or windows, a location customarily used to communicate with the general public.
- The signs were positioned adjacent to information clearly aimed at the general public (the store’s business hours).
- The employer’s Code of Conduct was widely distributed and contained a lawful no-solicitation rule specifically applicable to employees.
- The no-solicitation signs contained no additional language that might have led employees to reasonably believe that the signs applied to them.
- The signs had not been posted in response to a union organizing campaign.
- No employees had been disciplined for soliciting in violation of the rule posted on the sign.
For most employers, this Memorandum should not serve as license to use an abbreviated no-solicitation sign. They are better served by taking a more risk-averse approach. An employer should:
- Ensure that your employee no-solicitation rule is lawful, properly worded, and widely distributed to employees.
- Ensure the signs do not contain any wording that would lead employees to reasonably believe that the signs apply to them. (In fact, it is best that the signs specifically contain the words “non-employees” to make clear that the signs are applicable only to non-employees.)
- Train supervisors about the differences between the solicitation rule contained in the employee handbook/policies and the posted rule so supervisors do not discipline employees for violating the posted rule rather than the handbook rule.
- Ensure that, where the signs are posted on or near doors, they are posted only on doors that are meant primarily or exclusively for customer ingress and egress. They should not be posted on doors that are primarily or exclusively for employee ingress and egress.
- To the extent possible, the sign should be posted next to other information that is clearly directed to customers (i.e., store business hours).
It is acceptable for these “no-solicitation” signs to be posted in locations other than on entrance and exit doors to the store or building. For example, in some cases, the signs may be posted near the entrance to a parking lot. However, the same standards apply and the signs should not contain wording that may lead employees to reasonably believe that the signs apply to them. Employers also should consider posting the signs only near customer parking areas, not near employee parking areas.