Two significant developments have occurred in the ongoing litigation challenging the National Labor Relations Board rule that would require most private sector employers in the United States to post a notice of employee labor law rights by April 30.
On April 13, 2012, a federal district court in South Carolina ruled that the NLRB lacked authority to issue the regulation. Chamber of Commerce v. NLRB, No. 11-cv-2516 (D.S.C., April 13, 2012). Even more significantly in the short term, on April 17, 2012, the United States Court of Appeals for the District of Columbia Circuit enjoined the NLRB from enforcing the notice posting regulation while that Court considers an appeal over the rule. National Ass’n of Mfrs. v. NLRB, No. 12-5068 (D.C. Cir. April 17, 2012).
What Does This Mean?
The D.C. Circuit stated that the current “ uncertainty about enforcement” of the notice posting rule “counsels further in favor of temporarily preserving the status quo” while the court considers all issues on appeal. That means that unless the U.S. Supreme Court intervenes, the NLRB is prohibited from enforcing the notice posting rule until the appeal is decided, which likely will not occur until September. As things now stand, employers will not need to post the notices on April 30.
The South Carolina decision does not at this point prohibit the NLRB from enforcing the rule, but it does provide additional support to the employer groups that are challenging it.
We will continue to inform you of developments concerning the notice posting requirement.