NLRB Delays New Notice Posting Requirement
On August 30, 2011, the National Labor Relations Board (NLRB) published a Final Rule imposing a new posting requirement on employers, intended to explicitly advise employees of certain rights under the National Labor Relations Act (NLRA), including the right to form, join or assist a labor union, to bargaining collectively through representatives, to engage in protected and concerted activities including striking and picketing in protest of employment conditions, as well as the right to refrain from engaging in such activities.
The Final Rule required that a 11x17 poster be put up conspicuously where other notifications of employee rights or personnel policies are posted for employees to view. The poster also advises employees of "unfair labor practices" under the law, or actions by an employer that are in violation of the law. These include maintaining or enforcing rules that unlawfully limit the employees' rights under the NLRA, interrogating employees regarding union support or activities, and retaliating or discriminating against employees for engaging in protected activities, among others.
Prior to this new rule, employers were required to post notices regarding employee rights only as a remedy in cases where the employer was found to have violated the NLRA or had voluntarily settled allegations of such violations.
Originally, this new posting requirement was set to go into effect on November 14, 2011. On October 5, however, the NLRB postponed until January 31, 2012 the effective date of this requirement.
Originally proposed by a divided NLRB in December 2010, it was published as a Final Rule in the August 30 Federal Register (76 Fed. Reg. 54,006). The Final Rule has drawn heavy criticism by business groups and at least three legal challenges. The NLRB's October 5 announcement said the effective date of the notice posting rule was being pushed back "to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses."
The NLRB's decision will allow federal judges in Washington, D.C., and South Carolina additional time to consider legal challenges to the rule. The National Association of Manufacturers and the Coalition for a Democratic Workplace have filed a challenge in the U.S. District Court for the District of Columbia (National Association of Manufacturers v. NLRB, D.D.C., No. 11-cv-1629, and the National Right to Work Legal Defense and Education Foundation and the National Federation of Independent Business have filed another legal challenge (National Right to Work Legal Defense & Education Foundation Inc. v. NLRB, D.D.C., No. 11-1683). After the NLRB postponed the Rule's effective date, Judge Amy Berman Jackson consolidated the two lawsuits and has scheduled a December 19 hearing on the parties' challenges. The U.S. Chamber of Commerce and the South Carolina Chamber of Commerce have filed a third lawsuit challenging the NLRB rule (Chamber of Commerce of the United States v. NLRB, D.S.C., No. 11-2516). The Court in that matter has not set a schedule for consideration of that case.
For employers, there will be no financial consequences for a failure to post, as the NLRB's enforcement powers do not include the imposition of fines. However, the NLRB has indicated that it may view a failure to post as interference with employee rights resulting in an order, that it may view failure to post as evidence of unlawful intent when investigating allegations of other unfair labor practices, and that it may consider tolling the NLRA's six-month statute of limitations with regard to other violations on the grounds that the affected employees were not made aware of their rights as required.