TOP TIP: Guidelines for a Valid No-Solicitation/No-Distribution Policy

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A recent case provides a good reminder about the parameters of a valid no-solicitation policy. In Dish Network, LLC v. NLRB, the U.S. Court of Appeals for the Tenth Circuit found that the employer’s termination of an employee for violation of an illegal no-solicitation policy violated the National Labor Relations Act. This leads to the question – what are the rules that apply to no-solicitation and no-distribution policies?

According to the National Labor Relations Board, the following guidelines apply:

  • Employees may be prohibited from distributing any materials during his or her working time;
  • Regardless of whether they are on working time, employees may be prohibited from distribution of materials in working areas.
  • Employees may be prohibited from soliciting another employee during his or her working time or during the other employee’s working time;
  • For health care and retail employers, employees may be prohibited from soliciting another employee at any time in certain working areas (such as patient care areas or retail sales floors).
  • “Working time” includes all time during which an employee is assigned to or engaged in the performance of job duties, but does not include scheduled breaks or meal periods during which time the employee is not assigned to or expected to perform any job duties. In addition, it does not include the time before and after the employee’s shift.
  • “Working areas” include all areas where work is actually performed, but does not include areas such as break rooms, parking lots, locker rooms, and employee cafeterias.
  • Non-employees are not permitted to solicit employees or distribute written material on Company property at any time.