Hunton Employment & Labor Perspectives

In several prior blog entries, we told you about the NLRB’s new requirement that employers post a notice regarding employee rights under the NLRA.  Employers have been following the story with interest.

Initially proposed by the NLRB in December 2010, the new posting tells employees about their rights under the National Labor Relations Act (“NLRA”).  The new requirement initially had an effective date of November 14, 2011, but it has been delayed several times.  The NLRB first delayed implementation until January 31, 2012, to allow “for further education and outreach.”  Then, several industry groups and businesses filed federal lawsuits in South Carolina and Washington, D.C., challenging the NLRB’s Final Rule.  The groups argued the NLRB did not have statutory authority to issue the notice requirement.  While the lawsuits were pending, in the District of Columbia and South Carolina, the NLRB agreed to further delay implementation until April 30, 2012.

On March 2, 2012, the U.S. District Court for the District of Columbia upheld the NLRB’s authority to issue the notice requirement. The Court did strike down two parts of the NLRB’s Final Rule, however:  that which would have treated a failure to post as an unfair labor practice, and that which would toll the statute of limitations for any unfair labor charge against an employer who was not in compliance.

On March 5, 2012, the plaintiffs in that lawsuit (including the National Association of Manufacturers) filed an appeal to the U.S. Court of Appeals to the District of Columbia Circuit.  The District Court denied a request to enjoin the NLRB from enforcing the rule while the appeal is pending.  The District Court stated that it was not convinced any irreparable harm would befall employers if they are required to post the NLRB’s notice while the Circuit Court considers the case. The Court noted that, if the notice requirement is later invalidated, employers will simply take down the notice.

No ruling has been issued in the South Carolina case; the Court is considering motions for summary judgment.

What This Means For Employers

This new notice requirement applies to all private-sector employers covered by the NLRA, which is the vast majority of companies.  Except for federal contractors and subcontractors, which are already required by the Department of Labor to post a very similar notice, this will be a totally new posting obligation.

Unless a company already posts the DOL’s comparable notice, employers should obtain a copy of the notice from the NLRB via its website, or a Regional Office.  The notice should be posted, both physically and electronically, in all places that other employee notices are posted.  Additional details about how to fully comply with this posting requirement are discussed in our August entry, and in the NLRB’s frequently asked questions.

Companies should ensure they are compliant with this requirement by no later than April 30, 2012.

It remains to be seen whether the new posting will have any impact on labor relations within a given company.  Non-unionized employees may have a new or increased interest in union representation as a result of this poster.