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Property Lines: Where Employee Rights Meet Company Property Rights

Property Lines: Where Employee Rights Meet Company Property Rights Background Decorative Image

The call usually comes with the sound of panic. My client is upset that some of its contractor’s employees are handing out leaflets to everyone onsite and doing so within the property lines of the company. The contractor’s labor dispute is not with my client but with their own employer. “Can you do anything about it?”, I am asked.

As with many labor law questions, my answer often depends on the current composition of the National Labor Relations Board.

Until recently, under the Obama Board, my answer would depend on whether the company could show that the activity by the non-employees onsite would undermine the ability of the company to control the worksite and continue production. Needless to say, this was an exception that was very hard to meet. In fact, there is no Board case where this exception was found to exist.

On Friday, the Trump Board established a new standard: A company can now deny access if it can show that (1) the third-party employees do not regularly and exclusively work on the company’s property and (2) the third-party employees have other means by which to communicate their message.

In the case where it announced this test, the Board found that symphony employees who had been handing out leaflets at a performing arts center did not work exclusively on the center’s property as they only used the performing arts center for 22 weeks of the year for both rehearsals and performances and otherwise rehearsed and performed in other locations. The performance arts center was also used by other arts groups. The Board also found that the symphony workers could equally communicate by handing out their leaflets at a space across the street from the performing arts center.

Obviously, the Board’s new standard still leaves some questions that need to be addressed in order to determine whether the standard has been met and therefore action can be taken to enforce the company’s private property rights. What this all means is that if it appears that any of your contractors may have a labor dispute with their employees, you should start to consider these issues in case the third-party employees begin to pass out leaflets on your company’s property. Knowing the answers ahead of time may avoid some of the panic and allow the company to either take the appropriate legal action or understand why it cannot.

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This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.