CWS 3.0: May 4, 2011 - Vol. 3.11

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Legal Eagle: Access to the Worksite

Contract workers have gained a new type of worksite access following a March ruling by the National Labor Relations Board. As a result, companies should review their rules and policies regarding conduct on the property and access to the site by off-duty employees, non-employees and their contractor's employees.

The case, New York New York, LLC, d/b/a New York New York Hotel & Casino, dealt with whether a property owner could restrict site access to off-duty contract workers who were attempting to distribute handbills in connection with union organizing activity.

The contract workers were assigned by Ark Las Vegas Restaurant Corp. to provide on-site food services for guests and customers at the New York New York Hotel & Casino. The Ark workers sought representation by the same union that already represented some hotel and casino employees. On three occasions, Ark employees distributed handbills soliciting customer and public support for their organizing efforts on the casino and restaurant property. The casino summoned the police, which issued citations and escorted the workers distributing handbills off the property.

The case brought against the casino alleged that the actions it took to stop the handbill distributors' activities violated the National Labor Relations Act. The board concluded that actions of an employer property owner that affect “employees who do not stand in an immediate employer/employee relationship" may violate Section 8(a)(1) of the Act. The board found that the contractor's employees were protected by statute as employees in general, and that even though the casino was not their employer, its actions violated the workers’ statutory rights.

What this means is that property owners need to be careful when considering what, if anything, may be done to regulate or restrict access rights of contractor employees who are regularly employed on site.

Companies with on-site contractors should re-evaluate all of their rules and policies regarding conduct on the property and access to the site by off-duty employees, non-employees and their contractor's employees. Such rules and policies may need to be modified in light of the board's New York New York decision.

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