The National Labor Relations Board ("NLRB") adopted a new rule (the "Rule"), which requires all employers covered by the National Labor Relations Act (the "Act") to post an 11-by-17-inch notice notifying employees of their rights under the Act (the "Notice") by November 14, 2011. While the Rule will not apply to public-sector, agricultural, railroad, airline or very small employers, it will apply to approximately six million private-sector employers to include retail employers with annual sales volume of $500,000 or more, regardless of employee organization status. Similar posting requirements are already required under the Fair Labor Standards Act ("FLSA") and Family Medical Leave Act ("FMLA").

The Notice states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities. The Notice illustrates examples of unlawful employer and union conduct and instructs employees on how to contact the NLRB with questions or complaints. A copy of the Notice may be downloaded at the NLRB website: to be printed out in color or black-and-white on one 11-by-17-inch paper or two 8-by-11-inch papers taped together. The NLRB will also provide copies of the notice on request at no cost to employers beginning on or before November 1, 2011. These can be obtained by contacting a NLRB regional office.

The Notice must be placed (i) in a conspicuous location seen by all employees in the workplace and (ii) on an Internet or Intranet site, to the extent that personnel and policies are customarily posted electronically. In addition, if at least 20 percent of an employer's workforce is not proficient in English and speak another language, the Notice must be posted in English and the other language.

Failure to comply with the Rule may result in the following penalties: (i) a finding of an unfair labor practice, accompanied by a cease and desist order; (ii) tolling of the six-month statute of limitations under the Act for filing unfair labor practice charges, unless the employee filing the charge has "actual or constructive notice that the conduct in question is unlawful;" and/or (iii) treating a willful refusal to post the notice as evidence of improper motivation for other acts alleged to be unfair labor practices.