On August 30 2011 the National Labour Relations Board (NRLB) flexed its rulemaking muscle and finalised the Notification of Employee Rights Under the National Labour Relations Act, which requires employers to post workplace notices informing employees of their right to organise under the act.(1) In addition to apprising employees of their rights under the act, the notice will instruct employees on how to reach the NLRB for further information or to register a complaint. Employers are expected to comply with the new rule by January 31 2012. The implementation date for the rule was postponed from its original effective date of November 30 2011 due to various judicial challenges.
The notice provides employees with lists of rights under the act, employer activities that violate the act and union bargaining activities that violate the act. Specifically enumerated employee rights include rights to organise and participate in a union, discuss the terms and conditions of employment with coworkers or a union and strike or picket.
The notice also includes notification that an employee may choose not to join or participate in union activities. Categories of prohibited employer action referenced in the notice include:
- prohibiting or freezing union activities;
- threatening to close the workplace if employees unionise; and
- prohibiting the circulation of union literature during non-work hours or in non-work areas.
Union activities prohibited by the act include:
- threatening or coercing employees to gain union support;
- discriminating or causing an employer to discriminate against employees based on union-related activities; and
- taking adverse actions against non-union employees or employees who otherwise do not support the union.
The notice also alerts employees that unions and employers are required to bargain in good faith and genuinely to attempt to reach a written, binding agreement.
Notices may be obtained from the NLRB website.(2) With limited exceptions, all private employers covered by the act are subject to the notification, and a rights notice must be posted even if there is currently no union at the workplace. Specific employers exempt from the regulation include those employing domestic employees and very small businesses (defined as having an "impact on interstate commerce [that] is de minimis").
The following specific posting requirements apply to employers:
- The rights notice must be 11 inches by 17 inches in dimension.
- Translated versions of the rights notice must be posted in workplaces where 20% or more of the employees are not proficient in English.
- A hard copy of the rights notice must be posted in a conspicuous location, including areas where other personnel rules and policies are customarily posted.
- The rights notice must be available on an employer's intranet or internet site if other personnel rules and policies are customarily posted on such sites.
- Failure to post a rights notice will be considered an unfair labour practice.
- There are no recordkeeping or reporting requirements.
After dusting off a 1993 petition for rulemaking, the NLRB proposed the notification in December 2010, based on a belief that "American workers are largely ignorant of their rights under the [act]".(3) Brian Hayes, the sole dissenting member of the NLRB, maintains that the NLRB overstepped its authority in promulgating the final rule, observing that "[a]gencies may play the sorcerer's apprentice but not the sorcerer himself". Hayes expressed "confiden[ce] that a reviewing court will soon rescue the Board from itself and restore the law to where it was before the sorcerer's apprentice sent it askew". Answering the call, the National Association of Manufacturers (NAM) filed a challenge to the notification on September 8 2011. NAM is challenging the NLRB's:
- authority to require notice posting;
- jurisdiction over an employer in the absence of a representation petition or unfair labour practice charge; and
- authority to create a new unfair labour practice.
Similar suits were subsequently filed by the US Chamber of Commerce and the National Federation of Independent Business.
While awaiting decisions in the cases challenging the new posting requirement, failing any earlier judicial or regulatory activity that changes the landscape, employers should take action to ensure compliance with the posting requirement on or before January 31 2012.
For further information on this topic please contact Kevin B Leblang or Robert N Holtzman at Kramer Levin Naftalis & Frankel LLP by telephone (+1 212 715 9100), fax (+1 212 715 8000) or email ([email protected] or [email protected]).
(1) Notification of Employee Rights Under the National Labour Relations Act, 76 Fed Reg 54037 (August 30 2011) (to be codified at 29 CFR § 104).
(2) Available at www.nlrb.gov/sites/default/files/documents/1562/employee_rights_nlra.pdf.
(3) Proposed Rules of Employee Rights Under the National Labour Relations Act, 75 Fed Reg 8041 (proposed December 22 2010).