What you need to know

The National Labor Relations Board recently published a final rule effective November 14 that requires employers to post a notice informing employees of their rights to unionize under the National Labor Relations Act.  Copies of the notice will be available beginning November 1.

What you need to do

Employers should obtain copies of the NLRB notice as soon as it becomes available and post the notices in the workplace no later than November 14.  Employers that customarily post policies on an intranet or internet site must also electronically post the notice on such sites.

On August 30, the National Labor Relations Board published a final rule that requires employers to post a notice informing employees of their rights under the National Labor Relations Act.  Employers must comply with the posting requirement by November 14, when the final rule takes effect.

The required notice informs employees of their rights to unionize and bargain collectively, as well as their right to refrain from such activities.  The notice also provides examples of unlawful conduct by employers or unions and information on how to contact the NLRB or file a complaint.

The posting requirement applies to nearly all private-sector employers, regardless of size and regardless of whether an employer’s workforce is already unionized.  While the NLRB does not have the authority to impose fines on employers, failure to comply with the posting requirement may be treated as an unfair labor practice.  

Posting Requirements

Employers must physically post the notice in the workplace, in areas where other types of employee notices are customarily posted.  The poster must be 11x17 inches in size and may be printed in color or in black and white.  Employers must also post translated versions of the notice in the appropriate language if at least 20% of their employees are not proficient in English.

In addition, employers that customarily post employee policies on an intranet or internet site must also electronically post the notice on such sites.

Obtaining the Notice

The NLRB has announced that it will make copies of the notice available at no cost to employers beginning on or before November 1.  Once it is available, Choate will circulate a client alert attaching a copy of the notice.

Employers can also obtain a copy of the notice by contacting any NLRB office, downloading a copy from the NLRB’s website or purchasing a set of posters from a commercial supplier.  The NLRB will also provide translations of the notice in different languages at no cost to employers.

Responses to the Rule

Employers should be aware that the final NLRB rule differs in significant respects from earlier proposed versions.  For example, in response to more than 7,000 comments following publication of the proposed rule, the NLRB removed provisions that would have required employers to distribute the notice to employees via email, voice mail and text message, and to post the physical notice in color.

Despite the NLRB’s modifications to the rule, some remain concerned that the final rule is an overreaching of the NLRB’s authority.  On September 8, shortly after the final rule was issued, the National Association of Manufacturers filed suit against the NLRB in federal court in Washington claiming that the rule should be suspended because the NLRB lacks the power to enact it.  Thus far, this litigation is not expected to impact the rule’s effective date.