On August 30, 2011, the National Labor Relations Board (NLRB or Board) adopted a new rule that will require most private-sector employers, even those that are not unionized, to post a document notifying employees of their rights under the National Labor Relations Act (NLRA). 29 C.F.R. § 104. The new rule is part of a series of recent actions taken by the NLRB following President Obama's new appointments to the Board, and is one that may make it easier for unions to organize an employer's workforce.

Pursuant to the new rule, beginning on November 14, 2011, employers will be required to post the notice of rights in a location where notices to employees are customarily posted. The notice will provide information to employees regarding, among other things, their right to unionize, to bargain collectively, to strike or picket, and to refrain from joining in collective action. It will also explain that employers may not prohibit employees from talking about or soliciting for a union during non-work time, take adverse action against employees because of their support or lack of support for a union, or make promises or provide benefits to employees to encourage or discourage union support. In addition to setting forth prohibitions on employer conduct, the notice should include a list of conduct that is unlawful for unions, such as threatening employees to gain their support.

The rule provides several specific logistical requirements relating to the notice. First, with respect to the hard copy notice that is posted in the workplace, the employer must take steps to ensure that the notice is not altered, defaced, or covered with other materials. Employers will be required to print the notice on 11" x 17" paper, or on two attached pieces of 8.5" x 11" paper, in color or in black and white. A number of companies are including this notice with other required notices on one piece of paper (provided the notice still complies with the Board's requirements). Additionally, if the employer customarily communicates personnel rules or policies to its employees on an internet or intranet site, the employer will be required to post the notice itself or provide a link to the notice on the intranet or internet site as well. Finally, the rule explains that if 20% of an employer's work force is not proficient in English and that 20% speaks the same foreign language, the employer must also post a notice in that language. Similar rules apply to employers whose work force includes two or more groups constituting at least 20% of the workforce who speak different languages.

Although the posting rule applies to most private-sector employers, certain employers are exempt because their work force is comprised entirely of employees not covered by the rule (such as agricultural laborers, supervisors, or independent contractors), or because their gross annual volume of business does not meet certain jurisdictional standards. The Board will post on its website downloadable and printable versions of the required notice in multiple languages on or before November 1, 2011.

The new rule states that failure to post the required notice may constitute an unfair labor practice under Section 8(a)(1) of the NLRA, 29 U.S.C. § 158(a)(1), if it is found to interfere with, restrain, or coerce employees in the exercise of their rights guaranteed by Section 7 of the NLRA, 29 U.S.C. § 157. If an unfair labor practice charge is filed, the Board will investigate the allegations and attempt to persuade the employer to post the required notice expeditiously. If the employer does so, further proceedings would be unlikely. However, in the event an alleged violation cannot be resolved informally, a formal complaint may be issued by the Regional Director of the NLRB. An employer found to have violated the posting requirement will be ordered to cease and desist from the unlawful conduct and post the required notice. Although some additional remedies may be appropriate in certain circumstances, the Board will not impose penalties or fines for failure to post the notice. While the Board expects that the majority of failures to post will result from the employer's unawareness of the posting requirement, if the Board finds that failure to post was knowing and willful, that fact my constitute evidence of unlawful motive in an unfair labor practice case.

On September 8, 2011, the National Association of Manufacturers (NAM) filed suit against the Board in the United States District Court for the District of Columbia, challenging the posting requirement. NAM contends that the Board lacked statutory authority under the NLRA to promulgate this new rule. On September 16, 2011, the National Right to Work Legal Defense and Education Foundation and the National Federation of Independent Business filed a similar lawsuit in the same court against the Board. The plaintiffs in the latter suit allege that the new posting rule is invalid not only because it was promulgated without statutory authority, but also because it coerces employer speech in violation of the First Amendment. Both suits seek a declaration that the rule is void, as well as an injunction to prevent the Board from implementing or enforcing the rule. Although the lawsuits may ultimately invalidate the rule, because the outcome is still uncertain, employers should take steps to ensure that they will be in compliance with the notice requirement by November 14, when the rule takes effect. 

The recent developments in labor law, highlighted by the Board's notice-posting rule and its recent rulings on the scope of bargaining units and the legality of bannering, raise important issues for all employers – both those with unionized workforces and those without. Hogan Lovells will be preparing a webinar about these developments and the impact on employers in the coming weeks and will provide more information as the date approaches.