When selling or soliciting in the workplace is minimal, it's typically a non-issue. However, if this activity is causing disruption or perhaps even intimidation or harassment, you may want to consider a no solicitation workplace policy.
Selling and soliciting on company time that takes place on an occasional basis is usually noninvasive and doesn't need to be addressed. These sort of activities typically involve parents selling their children's school fundraiser items or employees seeking pledges for participating in a charity walk. However, if selling or soliciting in the workplace is causing disruption, it may be time for you address the issue.
You probably have no problem with your receptionist selling Girl Scout cookies at the office for her child. 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 purchases or 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.
Example
You have been letting the local blood bank 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.
You should be aware that 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 non-work areas by employees who are on their free time.
Despite the prohibition on obstructing your employees not to unionize, you can:
- prohibit solicitation and distribution by non-employees 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
Creating a no distribution or solicitation policy
If you're considering creating a no distribution/no solicitation policy, there are a few things you should include. The following 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.
Example
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 non-work 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. For example, 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.
