On August 25, 2011, the National Labor Relations Board ("NLRB") issued a Final Rule that requires employers to notify employees of their unionization rights under the National Labor Relations Act ("NLRA"). The notice of rights must be posted where other workplace notices are typically posted and must be posted by November 14, 2011. Employers who customarily post notices to employees on the Internet or the employer's intranet site will be required to post the NLRB's notice on those sites. Employers will not be required to distribute the notice via e-mail, voice mail, text messaging or related electronic communications even if they customarily communicate with their employees in that manner. The notices may be posted in black and white or in color. Employers of employees who work temporarily abroad are not required to post the notice in foreign workplaces. If as many as 20 percent of an employer's employees are not proficient in English but speak the same foreign language, the employer must post the notice in that language. If at least 20 percent of the workforce speak different languages, the employer must post the notice in each of the languages. Starting November 1, 2011, the notice will be available from the NLRB's regional offices and from the NLRB's website www.nlrb.gov. If an employer requests from the NLRB a notice in a particular language that is not available, the employer will not be liable for non-compliance until the notice becomes available in the language. If an employer has employees who are illiterate or are vision-impaired, the employer must consult with one of the NLRB's regional offices for guidance.

The notice is similar to the one required by the U.S. Department of Labor for federal contractors. Employees will be told that they have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities. It will provide examples of unlawful employer and union conduct. Of course, it will instruct employees on how to contact the NLRB with questions or complaints.

The posting requirement applies to all union and non-union, private-sector employers that are subject to the NLRA. Therefore, agricultural, railroad and airline employers are excluded.

The NLRB's jurisdiction has been found over entities that (1) have a gross annual volume of business of $500,000 or more (the NLRB refers to this as the "retail standard") or (2) have goods sold or services provided out of state (called "outflow") or goods or services purchased from out of state (called "inflow") of at least $50,000 (the NLRB refers to this as the "nonretail standard").

There are other jurisdictional standards for the following miscellaneous categories of employers:

  • Amusement industry: $500,000
  • Apartment houses, condominiums, cooperatives: $500,000
  • Architects: Nonretail standard
  • Art museums, cultural centers, libraries: $1 million
  • Bandleaders retail/nonretail: (depends on customer)
  • Cemeteries: $500,000
  • Colleges, universities, other private schools: $1 million Communications (radio, TV, cable, telephone, telegraph): $100,000
  • Credit unions: Either retail or nonretail standard
  • Day care centers: $250,000
  • Gaming industry: $500,000
  • Health care institutions:
    • Nursing homes, visiting nurses associations: $100,000
    • Hospitals, blood banks, other health care facilities (including doctors' and dentists' offices): $250,000
  • Hotels and motels: $500,000
  • Instrumentalities of interstate commerce: $50,000
  • Labor organizations (as employers): Nonretail standard
  • Law firms; legal service organizations: $250,000
  • Newspapers (with interstate contacts): $200,000
  • Nonprofit charitable institutions: Depends on the entity's substantive purpose
  • Office buildings; shopping centers: $100,000
  • Private clubs: $500,000
  • Public utilities: $250,000 or nonretail standard
  • Restaurants: $500,000
  • Social services organizations: $250,000
  • Symphony orchestras: $1 million
  • Taxicabs: $500,000
  • Transit systems: $250,000

If an employer fails to post the notice, the NLRB has indicated that it will initially believe that the employer is unaware of the rule and will comply after being requested to do so by a Board agent. However, a continued failure to post the notice may be considered a violation of the NLRA, and the NLRB will take appropriate action