On August 30, 2011, the National Labor Relations Board (“NRLB”) flexed its rulemaking muscle and finalized the Notification of Employee Rights Under the National Labor Relations Act (“Rights-Notice Rule”), which requires employers to post workplace notices informing employees of their right to organize under the National Labor Relations Act (“NLRA”). Notification of Employee Rights Under the NLRA, 76 Fed. Reg. 54037 (Aug. 30, 2011) (to be codified at 29 C.F.R. § 104). In addition to apprising employees of their rights under the NLRA, the notice will instruct employees on how to reach the NLRB for further information or to register a complaint. Employers are expected to comply with the new rule by January 31, 2012. The implementation date for the rule was postponed from its original effective date of November 30, 2011 due to various judicial challenges.
The notice provides employees with lists of rights under the NLRA, employer activities that violate the NLRA, and union bargaining activities that violate the NLRA. Specifically enumerated employee rights include rights to organize and participate in a union, discuss the terms and conditions of employment with co-workers or a union, and strike and/or picket. The notice also includes notification that an employee may choose not to join or participate in union activities. Categories of prohibited employer actions referenced in the notice include prohibiting or chilling union activities, threatening to close the workplace if employees unionize, and prohibiting the circulation of union literature during non-work hours or in non-work areas. Union activities prohibited by the NLRA include threatening or coercing employees to gain union support, discriminating or causing an employer to discriminate against employees based on union-related activities, and taking adverse actions against non-union employees or employees who otherwise do not support the union. The notice also alerts employees that unions and employers are required to bargain in good faith and genuinely attempt to reach a written, binding agreement.
Notices may be obtained from the NLRB website at https://www.nlrb.gov/sites/default/files/documents/1562/ employee_rights_nlra.pdf. With limited exceptions, all private employers covered by the NLRA are subject to the Rights-Notice Rule and a rights-notice must be posted even if there is currently no union at the workplace. Specific employers exempt from the regulation include those employing domestic employees and very small businesses (defined as having an “impact on interstate commerce [that] is de minimis”).
Specific Posting Requirements for Employers
- The rights-notice must be 11-by-17 inches in dimension.
- Translated versions of the rights-notice must be posted in workplaces where at least 20% of the employees are not proficient in English.
- A hard copy of the rights-notice must be posted in a conspicuous location, including areas where other personnel rules and policies are customarily posted.
- The rights-notice must be available on an employer’s intranet or internet site if other personnel rules and policies are customarily posted on such sites.
- Failure to post a rights-notice will be considered an unfair labor practice.
- There are no record-keeping or reporting requirements.
Challenge to the Rights-Notice Rule
After dusting off a 1993 petition for rulemaking, the NLRB proposed the Rights-Notice Rule in December 2010, based on a belief that “American workers are largely ignorant of their rights under the NLRA.” Proposed Rules of Emp. Rights Under the NLRA, 75 Fed. Reg. 8041 (proposed Dec. 22, 2010). Brian Hayes, the sole dissenting member of the NLRB, maintains that the NLRB overstepped its authority in promulgating the final rule, observing that “[a]gencies may play the sorcerer’s apprentice but not the sorcerer himself.”
Hayes expressed “confiden[ce] that a reviewing court will soon rescue the Board from itself and restore the law to where it was before the sorcerer’s apprentice sent it askew.” Answering the call, the National Association of Manufacturers (“NAM”) filed a challenge to the Rights-Notice Rule on September 8, 2011. NAM challenges the Board’s (a) authority to require notice-posting; (b) jurisdiction over an employer absent a representation petition or unfair labor practice charge; and (c) authority to create a new unfair labor practice. Similar suits were subsequently filed by the United States Chamber of Commerce and the National Federation of Independent Business.
While awaiting decisions in the cases challenging the new posting requirement, failing any earlier judicial or regulatory activity that changes the landscape, employers should take action to ensure compliance with the posting requirement on or before January 31, 2012.