NLRB Final Rule Requiring All Employers (Even Nonunion Employers) to Post Notice of Employee Rights Under the NLRA Delayed Until January 31, 2012
by:Labor and Employment Practice
On October 5, the National Labor Relations Board (NLRB or Board) announced that it would delay the effective date, until January 31, 2012, of its Final Rule requiring all employers subject to the Board's jurisdiction—i.e., the vast majority of employers doing business in the United States—to post a notice in the workplace informing employees of their right, among other things, to "[o]rganize a union," to "take action . . . to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government, and seeking help from a union," and to "strike and picket."
The Board's Final Rule was originally to be effective on November 14, 2011. According to the Board, the delay will "allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses." No changes to the form or content of the notice were made. The Board did not announce any specific plans for "enhanced education" or "outreach to employers."
The National Labor Relations Act (NLRA) gives employees the right to "form, join, or assist" unions, to bargain collectively with their employers, or to refrain from engaging in such activities. Although fewer than 7% of private-sector employees are represented by unions, some of the NLRA's protections extend to nonunion employees as well as union-represented employees.
A number of federal laws relating to employees—including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Fair Labor Standards Act, the Age Discrimination in Employment Act, and the Family and Medical Leave Act—include express statutory provisions requiring employers to post notices of employees' rights under those laws in the workplace. The NLRA contains no such provision. However, on January 30, 2009, President Obama issued Executive Order 13496, which required federal contractors and subcontractors to post notices of employees' NLRA rights. The NLRB's Final Rule extends this obligation to employers covered by the NLRA, even if they are not government contractors or subcontractors.
Under the Final Rule, the required notice must be posted in the same place where other work notices are posted. However, the Final Rule also requires that the notice be posted on an employer's intranet or Internet site if the employer customarily communicates with its employees by such means. Failure to post the notice could have three adverse affects. First, it will be an unfair labor practice under Section 8(a)(1) of the NLRA. Second, failure to post the required notice could toll the six-month statute of limitations for filing unfair labor practices. Third, the NLRB could use the failure to post the notice as evidence of an employer's unlawful motive in unfair labor practice cases.
Three Lawsuits Pending to Overturn the Final Rule
There are currently pending three lawsuits that challenge, among other things, the Board's authority to issue the Final Rule requiring the notice. The delay in implementation of the Final Rule will allow more time for the judges in those cases to review the merits of the Final Rule. If the plaintiffs in those cases are successful, the Final Rule could be blocked before implementation.
Although less than 7% of private-sector employees are currently unionized, the Final Rule requires that the vast majority of private employers—including those that employ that 93% of nonunion workers—publicize the NLRA in their workplaces through the required notice. The required notice, along with a proposed Board rule to allow "quickie" elections and recent case decisions covering corporate transactions, voluntary recognition, and "micro" bargaining units, represents the latest (but certainly not the last) Obama-controlled Board action making the atmosphere for union organizing more favorable.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis attorneys:
A. John Harper II
Clifford D. Sethness
Doreen S. Davis
Joseph C. Ragaglia