On Wednesday, October 5, 2011, the National Labor Relations Board (NLRB) announced that it would postpone the effective date of its employee rights posting rule from November 14, 2011 to January 31, 2012. Under this rule, adopted by the NLRB on August 30, 2011 and described in detail in our Hogan Lovells Employment Alert of September 19, 2011, most private-sector employers, even those that are not unionized, must post a document notifying employees of their rights under the National Labor Relations Act (NLRA). 29 C.F.R. § 104. For more information about this rule, please see the September 19 Employment Alert.
One reason for the postponement is pending litigation against the NLRB. Specifically, within weeks after the NLRB adopted the new rule, two lawsuits — which have since been consolidated in the United States District Court for the District of Columbia — were filed against the NLRB, challenging its authority to promulgate such a rule. Due to the complexities of the case, and the fact that the plaintiffs requested a preliminary injunction, United States District Court Judge Amy Berman Jackson requested that the NLRB delay the effective date of the rule to give the court more time to evaluate the arguments in the case. The court has indicated that it will render a decision on summary judgment motions before January 31. Additionally, the NLRB stated that certain businesses had expressed confusion over the rule's requirements, and delaying the rule's effective date would give the NLRB more time for education and outreach.
We will continue to keep you posted on developments relating to the posting rule.