Many non-unionized employers erroneously assume that labor law has little or no impact on their operations.  Based on that assumption, employers can easily run afoul of the National Labor Relations Act (“NLRA”), which applies to most private employers, whether their workforces are unionized or not.  On August 25, 2011, the National Labor Relations Board (the “Board”) issued its final rule which requires that, by November 14, 2011, almost all private employers post notices to employees in conspicuous places informing them of their rights under the NLRA.  Ignoring this new posting requirement could have significant consequences for employers, unionized and non-unionized alike, including tolling the statue of limitations applicable to filing an unfair labor practice charge with the Board.

Content of the Posting

The content of the posting includes a list of employee rights, including rights that are often overlooked by non-unionized employers.  For example, non-unionized employers frequently prohibit employees from discussing wages with co-workers, despite the fact that the NLRA protects an employee’s right to freely discuss wages, benefits and other terms of employment with co-workers. 

Another example, which is often overlooked by non-unionized employers, is an employee’s right to engage in protected concerted activity by taking action with one or more co-workers to improve working conditions.  Although this may not appear to be directly applicable to an at-will employment setting at first blush, a wide range of activities, often found in employment at-will settings, have been determined to be concerted activities protected by the NLRA.  For example, aiding an employee in filing an EEOC Charge, discussing work schedules with co-workers, using internal e-mail to oppose and encourage other employees to oppose an employer’s new vacation policy, walking out of the workplace to protest extraordinarily hot working conditions and walking off the job to protest the actions and attitude of a supervisor have all been held to be protected concerted activities.

In addition to setting forth employee rights under the NLRA, the required posting, among other things, informs employees of illegal acts by employers and unions, discusses employee rights generally under the NLRA and provides information about how an employee who believes his/her rights have been violated can seek assistance.

Consequences of Failing to Post

If the Board finds that the employer has failed to post the notice, the employer will be ordered to cease and desist from the unlawful conduct and post the required employee notice as well as a remedial notice.  In some instances, additional remedies may be invoked.

Of more concern to employers who fail to post the notice is that, if an employee files an unfair labor practice charge, the Board “may find it appropriate” to excuse the employee from the normal requirement that the unfair labor practice charge must be filed within six months after the allegedly unlawful conduct occurred. 

In addition, if an employer’s failure to post the new notice is “knowing and willful,” the failure to comply with the posting requirement can be introduced in Board proceedings as direct evidence of an employer’s anti-union motivation.

What This Means For Employers

  1. Unless this final rule is successfully challenged, employers must post the required notice by November 14, 2011.
  2. The notice must be posted in conspicuous places where it can be readily seen by employees, including all places where notices to employees concerning personnel rules or policies are customarily posted.  If the employer normally communicates with its employees about personnel rules or policies via Intranet or Internet, the posting must be posted electronically.
  3. Failure to post the notice is an unfair labor practice and could have implications on other unfair labor practice charges and union elections, including tolling the statute of limitations applicable to bringing unfair labor practice charges.