picketing

Do legal restrictions apply to picketing? For example, can picketing occur on the property of the company being picketed?

Legal restrictions do apply to picketing and are dependent on the type and purpose of the picketing as well as state and federal laws governing the situation. The makeup of the picketers (employee, nonemployee), the purpose of the picket (labor dispute, social issue, personal gripe), and the location of the company (a remote area, a busy street, a shopping mall) are all factors in determining what restrictions may apply and whether picketing can occur on company property. For example, consumer picketing does not enjoy the same level of protection as picketing as part of a labor dispute, while even in that same labor dispute nonemployees do not usually enjoy the same protections with regard to picketing as do actual employees.

With regard to non-labor-related picketing, state or municipal law may implement reasonable “time, manner, and place" restrictions on picketing. States and municipalities may restrict the size of the group picketing, the manner of the picket, the location, the time of the picket, or even restrict a picket within a reasonable distance of “any captive audience," such as patrons waiting in line for events or eating in a seating area. And most states have a ban on targeted residential picketing

Restrictions with regard to labor-related disputes are more difficult to quantify. Courts and the National Labor Relations Board (NLRB) have recognized the legitimacy of unions' claims for access to private property. The general rule is that picketing is not allowed on company property absent consent or a provision in a collective bargaining agreement, although exceptions have been carved into this rule. If the company's location is remote or fenced in, or there are no public easements surrounding the company, or a union has no other reasonable means of reaching the employer, picketing could be allowed on company property. It is also important to distinguish between picketing and other forms of labor protest. For example, while employees might not be able to enter onto company property to picket, they can distribute literature and solicit on company property during nonwork time and in nonwork areas to organize and conduct other protected activity

The generic answer is that, except in very limited circumstances, picketing cannot take place on private property without the consent of the owner. However, the fact that property may be privately owned (such as a shopping mall or a sidewalk located entirely on private property) does not automatically make consent of the owner required in all circumstances. A body of law has developed to govern picketing on private property, especially on property that is open to the public. Due to the complexity of the law surrounding pickets, particularly in the area of labor disputes, it is best for a company faced with picketing to consult with its counsel on this issue.

Helen M. Kemp, Division Counsel and Assistant Director, Retirement and Benefit Services, Office of the State Comptroller, State of Connecticut