Pursuant to a new rule issued by the National Labor Relations Board (“NLRB”) on Aug. 25, 2011, as of Nov. 14, 2011, virtually all U.S. employers, whether their workforces are represented by a union or not, will be required to post an NLRB-authored notice advising employees of their rights under the National Labor Relations Act (“NLRA”), including their right to form and join a union and listing some types of unfair labor practices employers (and unions) can commit. Failure to post the notice is a violation of the NLRA and can be used, among other things, as evidence of an employer’s unlawful anti-union motive in an unfair labor practice proceeding.
Which Employers Does This Notice Requirement Apply to?
This new notice-posting requirement applies to all employers who are subject to the NLRA and over whom the NLRB has asserted jurisdiction. The Board’s jurisdictional rules are complex and differ depending on the type of business involved, and you should consult with your advisers about whether the new rule applies to you. Nonetheless, the rule effectively applies to virtually every medium-sized and large employer in the United States. For example, for retailers, the NLRB asserts jurisdiction over (and thus the new rule applies to) all employers that have a gross annual volume of business of $500,000 or more. For non-retailers, the Board will take jurisdiction over any employer with an annual inflow (goods or services purchased by the employer from out of state) or outflow (goods or services provided by the employer out of state) of at least $50,000.
What Must Employers Do to Comply With the NLRB’s New Notice Requirement?
Employers are required to post the new notices “in conspicuous places where they are readily seen by employees, including all places where notices concerning personnel rules or policies are customarily posted.” Additionally, employers must “ensure that the notice is not altered, defaced, covered by any other material, or otherwise rendered unreadable.”
While employers need not provide employees with the notice by email in addition to posting as NLRB had originally proposed, the final rule does specify that employers who customarily post personnel rules and policies electronically on the company’s internet or intranet must also post the new notice in the same manner.
Subject to the NLRB’s providing foreign-language versions of the new notice, if 20 percent of the employees in a particular workplace are not proficient in English and speak another language, employers must also post the notice in that other language. Where there are two or more groups of employees who are not proficient in English, employers have the option of (1) posting the notice in both of the other languages (plus English); or (2) posting the notice in the language spoken by the greater number of such employees and providing copies to the others in their preferred language.
How Can Employers Get a Copy of the Required Notice?
Click here for the text of the notice authored by the NLRB, and reprinted in the Federal Register. On Nov. 1, 2011, a copy will also be available for download by employers from the NLRB website. A hard copy without charge is also available from the NLRB’s regional, sub-regional and resident offices. Click here for the NLRB’s fact sheet regarding the notice requirement.
What Are the Penalties for Failure to Comply With the New Final Rule?
The new rule provides three consequences for an employer’s failure to post the required notice. First, while the NLRB does not have the direct authority to issue monetary fines or penalties, the rule considers an employer’s failure to post the notice to be a violation of Section 8(a)(1) of the NLRA, in that such failure is considered to “interfere with, restrain or coerce” employees in the exercise of their NLRA rights, and consequently an employer who refuses to comply can be charged with an unfair labor practice. In this respect, as the lone dissenter to the new final rule observed, the NLRB majority has created a new potential unfair labor practice claim against an employer, and attendant risk of liability, which previously did not exist. Second, as significantly, the NLRB has specified in the rule that knowing failure to post the notice can be considered evidence of unlawful anti-union motive in an unfair labor practice proceeding where motive is an issue; in that respect, the new failure-to-post violation makes other unfair labor practice violations against employers easier to prove. Third, the rule provides that failure to post the notice can result in the tolling of the six-month statute of limitations for filing unfair labor practice charges, which also increases the potential for employer liability.
What Were the NLRB’s Reasons for Requiring These Notices?
Acting in opposition to a majority of those who commented on the NLRB’s original proposal, the NLRB adopted the new posting requirement, citing three reasons for the new rule: (1) the low percentage of employees who are represented by unions, (2) the increasing proportion of immigrants in the workforce who are unlikely to be familiar with their rights under the NLRA, and (3) the lack of information about labor law and labor relations on the part of high-school students who are about to enter the labor force. As various comments to the rule observed, the decline in union representation (which is now in single digits in the private sector) may be as reflective of employee free choice in rejecting union representation and the increasing availability of protective state and federal legislation undercutting the need for such representation as it is of employees’ lack of available information about the NLRA.
Significance for Employers
The purpose of the new rule is to raise employees’ awareness of their union organizational and other rights, and to alert employees of various ways in which employers can violate the NLRA. The enactment of the new rule therefore presents employers with strong incentives both to confirm whether they are covered by the NLRA and are subject to this new posting requirement, if there is any doubt about that, and, more importantly, to assess, acting in coordination with their experienced labor counsel, their overall understanding of and compliance with the NLRA so as to avoid the types of unfair labor practices to which the new notice is designed to sensitize employees.
For more information on this alert, please contact any of the lawyers listed below:
John Adkins, firstname.lastname@example.org, 617.951.8551
Jenny Cooper, email@example.com, 617.951.8473
Louis Rodriques, Co-chair, Labor and Employment Group, firstname.lastname@example.org, 617.951.8340
This article was originally published by Bingham McCutchen LLP.