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Attorneys

Non-Union Employers Beware - You Are Likely Required To Post The NLRB's New "Employee Rights" Poster

November 16, 2011

On August 30, 2011, the National Labor Relations Board (“NLRB”) adopted a rule that would require certain employers, including non-union employers to post a notice to employees explaining their rights under the National Labor Relations Act (“NLRA”). The implementation date was originally set for November 14, 2011. However, due to a number of lawsuits challenging the rule, the implementation date was delayed and the NLRB announced that the rule would not go into effect until January 31, 2012.

While it is still an open question as to whether any of the pending legal challenges to the rule will block the NLRB from implementing the rule starting January 31, 2012, employers should be aware of what is required under the rule and whether they are obligated to comply.

What is Required to be Posted?

The NLRB has created an 11” x 17” notice that informs employees that the NLRA protects their right to organize a union; form, join, or assist a union; bargain collectively; discuss wages, benefits, and other conditions of employment; raise complaints; strike and picket; or choose not to do any of these activities. The notice also outlines certain conduct by employers and unions that is prohibited by the NLRA and informs employees what to do if they believe their rights have been violated under the NLRA (“Notice”).

Where Can Employers Obtain a Copy of the Notice?

The NLRB says that the easiest way to obtain the Notice is to download it from its website – www.nlrb.gov/poster and print it on a single 11-by-17 paper or two 8-by-11 papers taped together. Free copies of the Notice are also available upon request at any NLRB regional office. Employers who purchase commercially produced comprehensive employment law posters that contain various required notices, will just need to make sure that their new 2012 comprehensive poster includes the new NLRB Notice.

What Employers are Required to Post?

With some limited exceptions, most private sector employers (union and/or non-union) are likely required to post the new Notice, regardless of size or industry. For the most part the rule exempts just a few industries: agricultural, railroad, airlines, and very small employers that have just a slight effect on interstate commerce (e.g. non-retail employers with annual gross volume of less than $50,000, and retail employers with an annual gross volume of less than $500,000).

Where Should the Notice be Posted?

The Notice should be posted in a conspicuous place, where other workplace rights notices and company notices concerning personnel rules or policies are customarily posted. Reasonable steps should be taken to ensure the Notice is not altered, defaced, or covered by any other material, or otherwise rendered unreadable. Employers with remote worksites should post the Notice at those locations to ensure that all employees are notified of their rights. Employers with operations both within and outside the U.S. are required to post notices at workplaces in the U.S. and its territories, but not at any workplaces in foreign countries. Employers who typically post personnel rules and policies on an internet or intranet site should also post the Notice of NLRA rights there, in addition to a physical posting. Employers are not required to distribute the posting by email, Twitter or other electronic means.

Are there any Penalties for Non-Compliance?

The NLRB cannot penalize employers merely for failing to post the new Notice. However, whether the employer did or did not post the new Notice will likely be considered by the NLRB in any unfair labor practices case. Therefore, failure to post the Notice could have negative consequences for an employer who is otherwise trying to defend against allegations of violations of the NLRA. Moreover, if an employer does not post the Notice, the NLRB may also extend an employee’s six (6) month statute of limitations for filing an unfair labor practices claim against an employer.

Recommendations.

Unless and until either the courts or new legislation declares that the NLRB does not have the authority to require employers to post the new Notice, all employers subject to the NLRB’s jurisdiction are well advised to comply with the new rule and post the Notice by January 31, 2012 so as to avoid any potential exposure related to non-compliance.