Background and the New Posting Rule
On August 25, 2011, the National Labor Relations Board (NLRB) issued a final rule requiring most private-sector employers to notify employees of their rights under the National Labor Relations Act (NLRA). Those NLRA rights include the right to act together to improve wages and working conditions, to form, join and assist a union and to bargain collectively with their employer (as well as their right not to do so). In comments issued with the final rule, the NLRB stated that it believes the notice is necessary because "many employees are unaware of their NLRA rights and therefore cannot effectively exercise those rights." Federal government contractors and subcontractors were required to post a similar notice pursuant to an Executive Order that took effect in June 2010. Private sector employers, however, have never previously been required to post notice about the 76 year-old labor relations law. The new rule takes effect on November 14, 2011.
Most Private Sector Employers Are Subject to the Posting Rule
The posting requirement will apply to nearly all private-sector employers except agricultural, railroad and airline employers and applies regardless of whether the employer is a union or non-union workplace. Very small employers whose annual volume of business is not large enough to have a more than a slight effect on interstate commerce are also exempted. Federal contractors, who already are required to post a similar notice by the Department of Labor, will be regarded as complying with the NLRB's notice posting rule if they post the DOL notice.
Physical and Electronic Posting Requirements
The notice can be obtained from the NLRB at no cost, or downloaded from the NLRB's website. The notice is 11-by-17 inches, larger that the 8 ½-by-11 inch notices typically required under other employment laws. (Downloaded copies may be printed on one 11-by-17-inch paper or two 8 1/2-by-11-inch papers taped together). Employers can also satisfy the rule by purchasing and posting a set of workplace posters from a commercial supplier.
Importantly, in addition to the physical posting, the rule requires employers to post the notice on an internet or intranet site if personnel rules and policies are customarily posted there. In a concession to employer concerns about the proposed rule, the NLRB decided that employers will not be required to distribute the notice by email, Twitter or other electronic means.
The notice must be posted in English and in another language if at least 20% of employees are not proficient in English and speak that other language. Where some, but fewer than 20% of employees speak a language other than English, the NLRB encourages, but will not require employers to translate the notice. The NLRB has stated that it will provide translations of the notice on its website.
Enforcement and Penalties
An employer's failure to post the notice may be treated as an unfair labor practice under the NLRA. The NLRB investigates unfair labor practice complaints made by employees, unions and other persons, but does not initiate enforcement action on its own. The NLRB has stated that it expects that, in most cases, employers who fail to post the notice are unaware of the rule and will comply when requested by a Board agent. In such cases, an unfair labor practice case will typically be closed without further action. The Board may also elect to extend the 6-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer. If an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA. As the NLRB itself has noted, the agency does not have authority to levy any fines.
If you have questions concerning this issue or need assistance with any other employment matter, please contact Chuck Bacharach at 410-576-4169 or Bob Kellner at 410-576-4239.