March 6, 2014
Men’s college basketball teams from the Midwest have historically made a strong showing in the NCAA tournament. Whether it is a hometown team or an alma mater, employers can expect that their employees will be invested in the tournament in some way. One common manifestation of this devotion to the NCAA men’s basketball tournament is the office pool.
Office pools have always been popular, but they have become even more widespread as employees can complete brackets online and may monitor their rankings at any time. Employees often attempt to organize office pools or seek participants for pools organized outside of the workplace. Despite the good-natured fun and friendly competition, employees’ attempts to organize office pools may violate policies against workplace solicitation and distribution. How employers handle or decline to handle office pools may impact the ability to enforce these policies in the future.
Most employers have written policies against solicitation, which is defined as the act of requesting an individual to purchase goods, materials, or services, or a plea for financial contribution. Under a non-solicitation policy, employees and non-employees are prohibited from soliciting during work time or in work areas. Work time is the time when an employee’s duties require that he or she be engaged in work tasks, but does not include the employee’s own time, such as meal periods, scheduled breaks, and time before or after a work shift. A work area is any office, building, or physical location where official business is transacted and/or operations are conducted. This can include any public or private area where employees are engaged in work activities.
Along with non-solicitation policies, most employers also prohibit distribution during work hours or in work areas. Distribution is the act of distributing goods, materials, and/or written materials.
When creating an office pool, employees may send emails or otherwise circulate information in order to recruit participants. If these efforts to organize an office pool are made during work time or in a work area, they may violate non-distribution and non-solicitation policies. Though many employers ignore or tacitly accept the prevalence of office pools, as they can boost morale and promote camaraderie, failure to uniformly administer solicitation and distribution policies can jeopardize the ability to enforce the policies in the future. If, for example, employees have been permitted to participate in office pools, form fantasy leagues, or solicit donations for fundraisers during work hours or in work areas in the past, employers should decide whether to recommit to enforcing their policies against non-solicitation and non-distribution as written or to amend their policies to reflect current practices. Uniform enforcement of non-solicitation and non-distribution policies can become vitally important in the realm of labor relations.
In United Parcel Service, Inc. v. NLRB, the Sixth Circuit considered the NLRB’s finding that the employer unlawfully enforced its non-distribution policy against a union member who attempted to distribute union literature in the workplace. 228 F.3d 772 (6th Cir. 2000). The employer’s policy, as written, prohibited the distribution of written or print materials in work areas during work time. Id. at 775. However, the NLRB found the employer unlawfully enforced the policy by disallowing an employee to distribute union materials at non-work areas during non-work times. Id. The Sixth Circuit affirmed that the employer committed an unfair labor practice when it disciplined an employee for distributing union organizing materials in a non-work, or “mixed” area, at a non-work time. Id. at 778. The court noted that the employer had regularly permitted employees to distribute materials about fishing contests, football pools, and golf tournaments at non-work times, such that it discriminatorily enforced the non-distribution policy against union organizing materials. Id. at 780.
Aside from uniform enforcement, whether an area is properly deemed a work area or non-work area is critical to policies against solicitation and distribution. In Meijer, Inc. v. NLRB, the Sixth Circuit examined whether the employer committed an unfair labor practice by prohibiting an employee from distributing union membership cards in a retail parking lot during non-work hours. 463 F.3d 534 (6th Cir. 2006). The Board upheld the opinion of the administrative law judge (“ALJ”) that the retail parking lot was a non-work area, such that the employer’s prohibition on union solicitation in the lot was unlawful. Id. at 538. The ALJ had noted that the employer permitted promotional events, like NASCAR racing, United Way fundraisers, and Coca Cola-sponsored children’s activities in the retail parking lot, such that there was insufficient evidence that the lot was a working area. Id. at 544. The Sixth Circuit affirmed the Board’s decision to uphold the ALJ’s finding that the employer had acted unlawfully. Id. at 545.
Thus, employers should be mindful of the potential ramifications of selectively permitting the solicitation and distribution of office pool materials during work time or in work areas. If employees are permitted to organize office pools in violation of the distribution or solicitation policies, employers compromise their ability to uphold these policies in the future. Further, if policies against solicitation and distribution are upheld, and office pools are relegated to non-work time and non-work areas only, employers should examine whether work and non-work areas are accurately classified as such.
For more information on the solicitation, distribution or other human resource needs please contact Clemans Nelson toll free at (800)-282-0787 or at one of the following regional offices:
Akron: 330-785-7700 Cincinnati: 513-583-9221 Dublin: 614-923-7700 Lima: 419-227-4945
