NLRB Requires Mandatory Posting for Most Employers but Postpones Compliance Date
On August 30, 2011, the National Labor Relations Board (NLRB) issued a Final Rule (Rule) mandating that any employer subject to the National Labor Relations Act (NLRA) post notice to its employees of their NLRA rights. The NLRB has postponed the effective date of the Rule to January 31, 2012, in order "to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses." The NLRB says that more time is necessary for employers to resolve questions as to whether or not they fall under the Board?s broad jurisdiction.
The Rule requires that almost all private employers, even those without a unionized workforce, post a notice explaining the employees' right to organize and bargain collectively with employers and to engage in or refrain from other protected activity. Few private employers are exempt from the Rule, although certain employers who are too small to reasonably affect interstate commerce may be outside of its scope.
The Rule further requires that the notice be prominently displayed alongside other legal notices to employees and where personnel rules are posted. The notice must be at least 11 inches by 17 inches, in black and white or color. If an employer uses an internet or intranet site to communicate personnel rules to its employees, the notice must be available there as well. It is not necessary that the notice be sent via email or other electronic media.
Additionally, if greater than 20% of an employer's workforce speaks a language other than English, the employer must provide the notice in that other language. The NLRB website currently provides a link to an exemplary notice in both English and Spanish at http://www.nlrb.gov/poster.
Penalties for noncompliance can be significant. For example, failure to post may result in an unfair labor practice charge against the employer or may affect the tolling of the limitations periods for other unfair labor practices. Further, the NLRB may treat failure to post as evidence of unlawful motive in cases where motive is relevant.
Controversy regarding the Rule existed even before the Board finalized it. The Board received more than 7000 comments to the proposed Rule, primarily in opposition to it. Many employers have argued that the NLRA does not expressly authorize a posting requirement, and therefore that the Board does not possess the statutory authority to require one.
The issue of statutory authority led the National Federation of Independent Business and the National Association of Manufacturers to file suit separately against the Board. The cases have been consolidated and are currently pending before a federal judge in the District of Columbia. While the possibility exists that the court will find that NLRB lacked statutory authority to issue the rule, it is not certain that there will be any such finding before January 31, 2012.
Accordingly, employers should plan to comply with the Rule as outlined on August 30, 2011. If you have questions regarding your business? responsibility with respect to the Rule, including whether you are exempt from the rule, please contact Michael Sullivan, David Morrison or Jon Klinghoffer.
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