NLRB Mandatory Employee Rights Notice Effective April 30, 2012

By Maxiel Gomez, Esq.
mgomez@pashmanstein.com

UPDATE: NLRB Delays Enforcement of Notice Rule Pending Court Resolution

The National Labor Relations Board announced today that its regional offices will not implement the rule requiring employers to post a notice advising employees of their rights until after the issues are resolved before the court.  On April 13, 2012, the Court in Chamber of Commerce v. NLRB held that the Board exceeded its authority by promulgating a rule that requires employers to post a notification of employee rights under the Act and found the rule was invalid in its entirety.  In National Association of Manufacturers, et al. v. NLRB., No. 11-cv-01629 (D.D.C. March 2, 2012), the D.C. Circuit ruled that portions of the rule were invalid.  The NLRB has already appealed the D.C. Circuit ruling, however, it has not yet taken any action in response to the South Carolina ruling.   Given the conflicting decisions in the federal courts, the NLRB has delayed implementation of the rule again.

NLRB Mandatory Employee Rights Notice Effective April 30, 2012

As of April 30, 2012, most employers will be required to post a notice advising employees of their rights under the National Labor Relations Act (“Act”).  The National Labor Relations Board (“NLRB”) has broad jurisdiction covering private sector employers that have an impact on interstate commerce exceeding a set minimum volume of business.  For example, the Act covers retail or service establishments with annual gross receipts of at least $500,000.   The rule, which faced vigorous opposition, was initially set to take effect on November 2011, then was postponed until January 31, 2012 and now the new implementation date is April 30, 2012.

In a recent split decision, the U.S. District Court for the District of Columbia held that the NLRB has the authority to require employers to post a notice advising employees of their rights under the Act.  The Court also upheld the portion of the rule that allows an employer’s failure to post the notice to be used as evidence of an unlawful motive or hostility towards union activities. National Association of Manufacturers, et al. v. NLRB., No. 11-cv-01629 (D.D.C. March 2, 2012).  The Court struck down two provisions of the Rule – the section which made the failure to post the notice an automatic unfair labor practice and the automatic tolling of the statute of limitations.  The National Association of Manufacturers has filed injunctive relief seeking a stay that would block the implementation of the NLRB’s notice posting requirement.  The Board’s rule is also being challenged before the U.S. District Court for South Carolina, however, a decision has not been issued yet.  Chamber of Commerce v. NLRB, D.S.C., No. 11-cv-2516.

Despite the pending challenges, employers should plan to comply with the rule’s April 30th deadline. The rule requires that the notice be posted in a conspicuous place alongside other employer notifications, or, alternatively, posted electronically on the employer’s internal or external website.  The notice must be posted in English and if 20% of the employees are not proficient in English, then in the other language. The notice is available for downloading in English and 23 other languages on the NLRB’s website at http://www.nlrb.gov/poster or free copies are available upon request from the NLRB.

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