Selling or Soliciting on Work Time

What do you tell an employee who:

• wants to sell Girl Scout cookies at the office for his or her child?
• gets other employees to pledge to support them in a fund-raiser for a charity?
• leaves a brochure for the makeup she sells in the employee break room so others can place orders?

These practices seem harmless enough, and most small businesses have no problem with them.

On the other hand, if you think there's a chance that a union will attempt to organize your workforce, there can be some serious consequences in letting this kind of activity go on in your workplace unchecked. And even if you're not concerned about union activity, solicitation for charities can waste time and make some employees feel pressured to make contributions they can't afford. A no solicitation/no distribution policy prohibits soliciting for any cause on company property and prohibits the distribution of printed material on company property.

One way that you can cause yourself difficulty is by prohibiting activity on behalf of a union but allowing solicitations or distributions of literature for other causes.

You have been letting the Red Cross conduct on-site blood drives periodically. In order to ensure employee participation, you have been rewarding employees with an hour off if they donate blood. Let's say that by doing so, you are permitting an exception to your own no solicitation/no distribution rule. You may have to show that union organizers are more disruptive of production than a blood drive in order to keep them out.

National Labor Relations Board (NLRB). The types of solicitations and distributions that the National Labor Relations Board (NLRB), the federal agency that oversees union activity concerns itself with relate to union cards, union literature, and other efforts used to convince employees to join a union.

Some other things you should know about this issue:

• You can lawfully prohibit employees from engaging in solicitation and distribution activities during the time they are supposed to be working. However, you can't keep employees from doing these things during their breaks and lunch periods, so long as they don't do it where others are trying to work.
• The NLRB has made an exception in the case of the United Way. Making the United Way a "sole exception" to the rule or permitting a small number of isolated charities or community organizations to be exempt from a broad no-solicitation rule is okay with the NLRB. They will be concerned only if it looks like you are allowing exceptions but are trying to prevent your employees from unionizing.
• The NLRB frowns on one other thing: requiring management's approval for the distribution of literature in nonwork areas by employees who are on their free time.

You are permitted to:

• prohibit solicitation and distribution by nonemployees so long as it is strictly enforced
• prohibit solicitation and distribution by employees during work time in work areas so long as it is enforced across the board
• make an exception for the United Way or for isolated organizations, but you may later have to prove — in the event of a union drive — that union activity would be more disruptive of production and discipline than other solicitations

What to put in your policy. If you create a no distribution/no solicitation policy, there are a few things you should include. Below are some "musts" for your policy and some examples of how to do it and how not to do it.

• Make sure that the phrase "work time" is defined so as to specifically exclude breaks and lunch time. You cannot control employees in this regard when they are not at work or on the clock.

Definition of work time. Work time means the time employees are actually engaged in work and does not include their meal time or break time.

• Define work areas and nonwork areas so that there is no room for misunderstanding where employees may not engage in distribution and solicitation.
• Check to see if your industry is regulated by special guidelines created by the NLRB.

Special consideration is also given by the NLRB to customer access areas in retail stores. Retail employers may stop solicitations and distributions in selling areas, on elevators, and in walkways.