There are many reasons why employers may want to restrict employees from being at the workplace during non-working hours. For example, employers may want to prevent employees from working beyond their usual shifts to avoid unplanned overtime hours. If an employee who is paid by the hour works more than 40 hours per week, with or without the employer’s authorization, the employee may be entitled to overtime pay. Employers can try to prevent becoming liable for unexpected overtime pay by restricting employees from the workplace during non-working hours.
Employers may also choose to restrict employees from being at the workplace during non-working hours in order to help protect confidential information and in order to help prevent theft and embezzlement. An employee who is on the employer’s premises off hours may gain access to the company’s confidential or proprietary information, whether on paper or electronic, out of the view of other employees and managers. Similarly, an employee who is on the employer’s premises off hours may be able to steal documents, cash, medications, equipment or other items out of sight of the company’s employees and supervisory personnel.
In order to address these concerns, employers can have policies restricting employees from working; from being at their work stations; and from being in certain areas of the business (such as areas where cash, confidential information, inventory, drugs, or other items are kept). Employers may not, however, be able to completely restrict employees from being on company property.
The National Labor Relations Board (which enforces employee rights to unionize and take other actions for the workers collectively, whether the workforce is unionized or not), has addressed policies that restrict employee off-duty access to company property. Specifically, in order for such a policy to pass NLRB scrutiny, it must:
- Limit access only to the inside of the facility and other working areas, and not apply to outside areas such as parking lots;
- Be clearly disseminated to all employees; and
- Apply to all off-duty employees seeking access to the company workplace for any purpose.
The company’s employee handbook should include the company’s policies on work hours, overtime, and access to the workplace. Employers are best advised to consult with counsel on formulating and drafting such policies.