As we reported in late August, the NLRB announced a final rule requiring private sector employers to post a notice of employee rights under the NLRA. On Wednesday, October 5, 2011, the NLRB announced that it would postpone the implementation date for the controversial rule, stating that more time was needed for education and outreach to employers, especially to small and mid-sized businesses. The rule will now go into effect on January 31, 2012.
The NLRB issued a press release on Wednesday explaining that "the decision to extend the rollout period followed queries from businesses and trade organizations indicating uncertainty about which businesses fall under the Board’s jurisdiction." Unlike other federal employment laws, coverage under the NLRA does not depend on the number of employees that the company employs, but on the volume and character of the employer's business and its effect on interstate commerce. The NLRB further stated that no other changes to the rule, either to the form or the content of the notice, would be made.
Several lawsuits have been filed, and more can be expected, challenging the authority of the NLRB to impose this rule and to make noncompliance with the rule an unfair labor practice. The rule is also under assault in Congress, where several pieces of legislation have been introduced aimed at repealing the rule and limiting the authority of the NLRB. Recently, the House Appropriations Committee proposed a rider to the NLRB’s 2012 budget which would prohibit the NLRB from using any portion of its budget to enforce the rule.
Franczek Radelet advises that employers covered by this rule wait until January 31st before displaying the poster, given the multiple pending challenges to the rule.