In late August 2011, the National Labor Relations Board (Board) implemented a controversial rule requiring employers to post notices informing employees of their rights under the National Labor Relations Act (NLRA). (Click here to read our original alert concerning this rule). On September 5, 2011, the Board delayed the effective date of this rule from November 14, 2011, to January 31, 2012.

In announcing this postponement, the Board stated that its action was "to allow for enhanced education and outreach to employers, particularly those who operate small- and medium-sized businesses." It also stated that the delay of this deadline "followed queries from businesses and trade organizations indicating uncertainty about which businesses fall under the Board's jurisdiction, and was made in the interest of ensuring broad voluntary compliance." The Board made clear, however, that "[n]o other changes in the rule, or in the form or content of the notice, will be made."

Multiple groups have filed legal challenges to this rule. The United States and South Carolina Chambers of Commerce filed a lawsuit seeking an injunction to prevent the Board from enforcing the rule, and similar lawsuits have been filed by the National Association of Manufacturers, the National Right to Work Foundation and the National Federation of Independent Business. The lawsuits claim the Board lacks the authority to require employers to comply with the rule, that the rule constitutes "compelled speech" in violation of the First Amendment and that the Board's actions were arbitrary and capricious.