The National Labor Relations Board's ("NLRB") new rule requiring private employers to post a notice informing employees of their rights under the National Labor Relations Act ("NLRA") has been the subject of several legal challenges. These lawsuits question the NLRB's authority to promulgate this rule, and include challenges brought by the National Association of Manufacturers, the National Federation of Independent Business, and the U.S. Chamber of Commerce, among others.
Pillsbury Client Alert, New Workplace Posting Requirements, dated August 30, 2011. The rule was scheduled to go into effect on November 14, 2011, but the NLRB has announced that it is postponing the implementation date until January 31, 2012.
Under the posting requirement, employers must notify employees that they have the right to discuss their wages, benefits and other terms of employment with co-workers and the right to take action with one or more co-workers to improve working conditions by, among other means, raising work-related complaints. Additionally, the posting must notify employees that it is unlawful for an employer to terminate, discipline or take other adverse action against employees who exercise these rights. The poster is available from any of the NLRB's regional offices as well as the NLRB's website: https://www.nlrb.gov/poster.
In postponing the implementation date until January 31, 2010, the NLRB said that the delay is a response to questions from business and trade organizations regarding which businesses fall under the NLRB's jurisdiction. According to the NLRB, the two-and-a-half-month delay will "allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses."1
The new posting requirement has been the subject of several legal challenges questioning the NLRB's authority to promulgate this rule, including lawsuits brought by the National Association of Manufacturers, the National Federation of Independent Business, and the U.S. Chamber of Commerce, among others.2 Many commentators surmise that the NLRB's decision to delay implementation of the posting requirement was influenced by the pending litigation as well as political pressures.
Employers should be aware that the effective date may slip even further – or indeed, the entire rule may be voided – in response to legal and political challenges. For now, however, January 31, 2012 is the effective date, and the NLRB has stressed that no other changes in the form or content of the posting requirement have been made.