On August 25, 2011, we updated you on the notice posting rule affecting private employers that are subject to the National Labor Relations Act (Act). The notice posting requirement, initially proposed in December 2010 and recently finalized by the National Labor Relations Board (Board), requires private-sector employers to post a notice advising employees of their rights under the Act and, in essence, mirrors the U.S. Department of Labor's notice requirement for federal contractors. The rule takes effect on November 14, 2011. (To read the full text of our August 25, 2011, alert, click here.)

Recently, the Board issued Memorandum OM 11-77 (Memo) to provide guidance on requirements for the notice posting rule. In its Memo, the Board noted that the required notice is expected to be available in November 2011 and will be available for download from the Board's website at www.nlrb.gov. Employers will have the option of downloading, printing and posting an 11x16-inch poster or downloading two 8.5x11-inch panels that can be taped together. Employers will be allowed to post black-and-white reproductions of the notice and will be permitted to use combination notices consolidating information about various federal laws on a single document "as long as consolidation does not alter the size, format, content or size and style of type of the Notice provide by the Board." (To access the full text of the Memo, click on the following link – http://www.nlrb.gov/publications/operations-management-memos.)

In addition, the Memo reviewed the following aspects of the Board's notice posting rule:

  • Employers who customarily post employee notices about personnel rules or policies on an intranet or internet site must display no less prominently either an exact copy of the notice or a link to the Board web page containing the notice.
  • Federal contractors required to post the Department of Labor's notice of employee rights in accordance with Executive Order 13496 will not be required to post the notice.
  • The Board's Regional Offices will not conduct inspections to verify that employers have posted the notice.
  • However, an employer's continued failure to post the notice may be treated as an unfair labor practice and result in a cease-and-desist order from the Board. An employer's inadvertent failure to post the notice will be resolved by bringing the employer's attention to the rule.
  • An employer's knowing and willful failure to post the notice may be used as evidence of an unlawful motive in prosecuting other violations of the Act.  

The Board's notice posting rule remains highly controversial. On September 2, 2011, Representative Ben Quayle (R-Ariz.) introduced the Employee Workplace Freedom Act (H.R. 2833) in an effort to repeal the Board's new rule. In his bill, Quayle refers to the rule as a "needless requirement" outside the NLRB's statutory authority and seeks to prohibit the Board from "promulgat[ing] or enforc[ing] any rule that requires to post notices relating to the National Labor Relations Act."