Board Modifies Standard Governing Off-Duty Workplace Access for Employees of Contractors

Today, the Board issued a decision in Bexar County II, restoring the rights of workers employed by a contractor to engage in protected concerted activity in their workplace.  

The new decision overturns Bexar County I, 368 NLRB No. 46 (2019)—which was sent back to the Board for reconsideration by the D.C. Circuit Court of Appeals—and makes clear that a property owner may only exclude the employees of its contractors from engaging in protected activity on the worksite if such activity would significantly interfere with the use of the property, or where exclusion is justified by another legitimate business reason.  Bexar County II thus reestablishes the standard originally articulated by the Board in New York New York Hotel & Casino, 356 NLRB 907 (2011).

The Board reasoned—in line with the D.C. Circuit’s concerns—that the Bexar County I standard undermined contractor employees’ right to engage in protected concerted activity under Section 7 of the National Labor Relations Act without rational justification.  Returning to the New York New York standard properly accommodates contractor employees’ rights under federal labor law with the property owner’s legitimate interests, and avoids creating incentives for employers to structure work relationships to avoid direct hiring.

“For contractor employees, the right to exercise their Section 7 rights at their workplace – where they interact with their coworkers and are most impacted by their employer’s decisions—is critical to making the protections of the Act a reality,” said Chairman Lauren McFerran. “Today’s decision ensures that contract employees’ rights are protected and respected in a manner appropriate to the nature of their employment.”

Members Wilcox and Prouty joined Chairman McFerran in issuing the decision. Members Kaplan and Ring dissented.