Moonlighting Policies Can Protect Employers From Union Salts

Salting is when union-affiliated individuals seek employment with non-union employers for the purpose of organizing a workforce or identifying labor law violations. In some cases those individuals are paid union employees and in others they are acting as union volunteers.

In a 1995 decision, the Supreme Court held that, even though they may separately work for a labor union, these individuals are nonetheless still considered employees of the non-union employer and are therefore covered by the anti-discrimination protections of the National Labor Relations Act. This had long been the position of the NLRB since a 1974 decision determined that employees do not lose their status because they are separately paid to organize. This means that salt employees cannot be denied employment on the basis of their union affiliation.

With these legal protections for salting in place, what can your corporate clients do when faced with individuals seeking to work for them while simultaneously attempting to organize their workforce?

Subsequent Legal Authorities

Federal case law has somewhat softened the blow of the Supreme Court's holding for employers. For example, a Sixth Circuit case in 1997 held that an employer may deny employment to a full-time paid union organizer when it applies a nondiscriminatory moonlighting policy disqualifying applicants who hold full-time jobs elsewhere. In that case, the employer's policy prohibited the hiring of individuals who intend to work simultaneously for another employer on a full-time basis. So long as the moonlighting policy was uniform and not applied in a discriminatory fashion, the Sixth Circuit determined that:

An employer could reasonably conclude that the work product of an employee would suffer if that employee worked two full-time jobs. Additionally, an employer could require its employees to work overtime and on the weekends on a regular or irregular basis, and a second job would make it more difficult for an employee to comply with those requirements.

The NLRB has also affirmed the use of moonlighting policies as discussed in a 2012 opinion memo. That memo stated that such policies were legal unless evidence showed that they were adopted specifically to prevent salting or where they were discriminatorily enforced against salt employees.

In addition to case law and NLRB opinions endorsing the use of neutral moonlighting prohibitions, legislation has frequently percolated in Congress which, if passed, would amend the NLRA allowing employers to refuse to hire individuals seeking employment for the purposes of another employer or agency.

What Does This Mean For Your Clients?

There are several takeaways for employers. First and foremost is that it is unlawful to discriminate against an employee or prospective employee because of their affiliation with a labor union. Any basis for terminating or refusing to hire such individuals must not be based on their union affiliation.

Another important takeaway for your clients is the need to proactively implement neutral policies to protect their workplace ahead of time before facing the prospect of salting. Doing so after the fact, even if the policies are neutral on their face, could still be interpreted as discriminatory by courts if they coincide with the hiring of a salt employee. Some ways to protect a workplace can include the posting of signs restricting:

  • Loitering
  • Soliciting
  • Use of photography or other recording devices

Another way for your clients to protect their workplace is by maintaining:

  • Effective communication with employees
  • Proper training for managers and supervisors
  • Compliance with labor law requirements

Perhaps the most effective tool, however, would be the use of non-discriminatory moonlighting prohibitions. Your clients should review their hiring policies and applications to determine whether a moonlighting policy would be appropriate. However, they should remember that any moonlighting policy would have to be applied uniformly to all employees.

The final takeaway for your clients is to be aware of the ever-present efforts of union leadership to expand their base into non-union companies. In some cases, these tactics have been used coercively to financially harm companies or put them out of business completely.

Next Steps

For more information on labor law requirements or other areas in which you can protect your corporate clients, see FindLaw's Legal Professional section on Corporate Counsel.