April 30, 2012 Deadline for Compliance with NLRB Employee Rights Posting Requirement May Be Extended Again

As we have previously reported in the Employment Law Alert, an National Labor Relations Board (NLRB) final rule adopted last August requires most private sector employers — including companies that are not unionized — to post in their workplaces a Notice of Employee Rights under the National Labor Relations Act. The deadline for employers to comply, which has been extended twice in the wake of lawsuits challenging the Board’s authority to issue the rule (see our follow-up reports here and here), is currently set for April 30, 2012.

Last Friday, with the deadline for posting only two weeks away, the District of South Carolina issued a opinion in the Chamber of Commerce v. NLRB case, holding that the NLRB exceeded its congressional authority when it approved the posting requirement and striking down the rule. This decision conflicts with a ruling by the District Court for the District of the District of Columbia last month in National Association of Manufacturers v. NLRB. That court upheld the posting requirement, but held that certain of the enforcement provisions violated the NLRA.

As of now, the NLRB posting requirement remains scheduled to go into effect on April 30, 2012. Accordingly, private sector employers subject to the jurisdiction of the NLRB should continue their preparations to comply with the new rule and to address employee questions that may arise in response to the Notice. The Employment Law Alert will continue to follow this issue and will post additional updates as they become available.

Details regarding the Notice and the posting requirements as they currently stand follow.

The Employee Rights Notice

The vast majority of private sector employers are under the broad jurisdiction of the NLRB and required to post the NLRB Notice. The Notice advises employees of their rights under the National Labor Relations Act (NLRA), including, but not limited to, the rights to:

  • Organize or join a union;
  • Discuss wages, benefits, other terms and conditions of employment or union organizing with co-workers or a union; and/or
  • Take action with co-workers to improve working conditions.

The Notice also includes contact information for the NLRB and basic information regarding NLRB enforcement procedures.

Physical Posting Requirements

Employers are required to post the 11-by-17-inch Notice, which may be printed from the NLRB website in two formats, in a conspicuous location in the workplace, including all places where notices to employees (e.g., notices regarding employment laws and Company personnel rules/policies) are customarily posted. In lieu of the NLRB-provided poster, employers are permitted to post a consolidated Federal labor and employment law poster from a commercial service that includes the NLRB Notice. However, the size, content and format must be consistent with the Notice provided on the NLRB website.

Federal contractors that have already posted the Department of Labor’s notice regarding employees’ NLRA rights will be deemed in compliance with the NLRB’s posting rule, and are not required to post a second NLRB Notice.

Electronic Posting Requirements

In addition to the physical posting, companies that typically communicate with employees about personnel rules/policies via an intranet or internet site must also post the NLRB Notice or a link to the Notice on that website. The electronic posting requirement may be satisfied by displaying either an exact copy of the NLRB Notice or a link to the NLRB website that contains the Notice. If a link is used, the link must read “Employee Rights under the National Labor Relations Act.” Employers are not required to distribute the NLRB Notice to employees via e-mail, social media or electronic means other than an intranet/internet site.

Posting in Languages Other Than English

The final rule also requires employers with a substantial percentage of employees who are not proficient in English to post the NLRB Notice in the employees’ native language. If at least 20 percent of a company’s employees are not proficient in English and speak another language, the Notice must be posted both in English and the other language. If a company’s workforce includes two or more groups of employees, each constituting at least 20 percent of the workforce, who are not proficient in English and speak other languages, the company is required to physically post the Notice in the language spoken by the larger group (in addition to posting the English Notice), and then may either post the Notice in the language(s) spoken by the other group(s) or distribute copies of the Notice to those employees in their language(s). In addition, if posted electronically, the NLRB Notice must be posted in each of the languages spoken by at least 20 percent of a company’s workforce. Translations of the Notice in more than 20 languages are located here.

Consequences of Failure to Post

Under the final rule, failure to post the NLRB Notice may be considered an unfair labor practice and may subject a company to a cease and desist order and/or the imposition of other remedial measures by the NLRB. If an employee files an unfair labor practice charge, the NLRB may extend the normal six-month statute of limitations for charges if the employer failed to post the NLRB Notice, putting the employee on notice of his/her rights under the NLRA. In addition, if the company is found to have knowingly and willfully refused to comply with the posting requirement, that failure may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.

Employee Questions About the Notice and Unions

As a result of the new NLRB Notice, employees may approach their supervisors with questions about the Notice or unions more generally. In light of the serious legal consequences that may result from conduct or statements by supervisors that can be considered interference with the rights of employees under the NLRA, we recommend that employers take steps to educate their supervisors regarding the new Notice and employees’ rights under the NLRA, in writing and/or through in-person supervisor training.

We will continue to follow this issue and will post additional updates in the Employment Law Alert as they become available. In the meantime, if you have questions regarding the new NLRB Notice, supervisor training or the implications of the new Notice for your company, please contact an attorney in the Gibbons Employment & Labor Law Department.

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