"Salting" In The Workplace - Revisited
By: RICHARD A. ROSS
August 1997
In the Winter 1996 issue of Employment Law Focus, we reported on the Supreme Court decision holding that an employer could not refuse to hire an applicant because he or she is actually an employee of a union and intends to organize the workplace. In a recent decision of the Sixth Circuit Court of Appeals, the Court held that there may be circumstances when an employer may lawfully refuse to hire such an individual.
In Architectural Glass & Metal Co., Inc. v. National Labor Relations Board, the Sixth Circuit held that if an employer has a legitimate non-discriminatory reason for refusing to hire a union organizer, the employer can avoid violating the National Labor Relations Act. Specifically, in this case, the employer had a pre-existing policy prohibiting "moonlighting" by employees. The Court held that an established "moonlighting" policy, not adopted to avoid union organizing efforts (i.e. motivated by anti-union animus), and which is actually used to avoid circumstances where an employee's second job might affect productivity or interfere with overtime requirements, may enable the employer to assert a non-discriminatory reason for refusing to hire the paid union organizer and avoid a violation of labor law.
The National Labor Relations Board might take the position that this case is not applicable in Minnesota, because the Board applies Federal Court of Appeals decisions only in the jurisdictions covered by that Circuit. However, there appears to be some basis to argue that even the Board would acknowledge the non-discriminatory basis of a "moonlighting" policy, if the employer is able to establish that it was not created or applied based upon anti-union animus.
We suggest that before adopting a "moonlighting" policy you consult with legal counsel to determine whether such a policy is appropriate or necessary, and how to avoid negative legal consequences from adopting the policy both in labor and employment law contexts.