The National Labor Relations Board (NLRB or the “Board”) has issued a Final Rule requiring most employers to notify employees of their rights under the National Labor Relations Act (NLRA) by posting a specified notice. The rule is scheduled to be formally published on August 30, 2011, and will take effect 75 days later, on November 14, 2011.
Similar to postings of employees’ workplace rights required by other federal laws, the new notice of NLRA rights states that employees 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 also includes examples of unlawful employer and union conduct, and instructs employees how to contact the NLRB with questions or complaints. The notice will be provided for free through NLRB regional offices or can be downloaded from the NLRB website; it will be made available on or before November 1, 2011. Until then, the text of the notice can be found in Subpart A of the Rule.
The posting requirement applies to all private-sector employers subject to the NLRA, which excludes agricultural, railroad and airline employers. Moreover, because the NRLA applies to both union and non-union workplaces, the latter will still be subject to the posting requirement. Only smaller employers—retail employers with less than $500,000 in gross annual volume of business and nonretail employers with annual inflow or outflow (measuring good and services sold or purchased) of less than $50,000—are excluded from the posting requirement. The NLRB estimated in its notice of proposed rulemaking that the “great majority” of 6 million small businesses in the United States will be required to comply.
The notice must be posted in a conspicuous location, including all places where notice to employees is normally provided. Employers must also post the notice on an intranet or an Internet site if personnel rules and policies are customarily posted there. Translated versions will be available and must be posted at workplaces where at least 20 percent of employees are not proficient in English.
Employers who fail to comply with the Rule will be subject to investigation for unfair labor practices under the NLRA. Because most non-compliance is expected to result from unawareness of the rule, the Board has indicated that, ordinarily, cases will be closed after businesses comply with the posting requirements. Nevertheless, “additional remedies” that “may be appropriately invoked in keeping with the Board’s remedial authority,” could be available.
Regardless, failure to post the notice can have more significant consequences in two ways. First, if an employee files a charge involving other unfair labor practice allegations against an employer and notice has not been posted, the Board may extend the six-month statute of limitations, allowing an otherwise time-barred claim to be viable. Second, if an employer knowingly fails to post the notice, that failure can be evidence of unlawful motive in cases involving other alleged NLRA violations.
Ultimately, just as employers are required to notify their employees of their rights regarding health and safety, wages, and discrimination in the workplace, this new rule provides similar information about their rights involving labor practices. Employers should make sure to obtain and post the required notice before the November 14, 2011, deadline and contact legal counsel if they have any questions.