The National Labor Relations Board (NLRB) announced that effective November 14, 2011, most private employers (union and non-union) will be required to notify employees of their rights under the National Labor Relations Act (NLRA).

The NLRB’s final rule prescribes an 11x17-inch poster as the form of the notice, which will summarize employees’ rights under the NLRA. The notice must be posted and maintained in conspicuous places, including all places where notices to employees are customarily posted.

The notice must also be posted on the internet or company intranet if the employer routinely communicates personnel rules or policies to employees through such means. If at least 20 percent of an employer’s workforce is not proficient in English, the employer must post the notice in the other language(s).

Similar notices summarizing employees’ workplace rights are already required under other federal workplace laws. The NLRB believes that given the common practice of workplace notice-posting, this new posting requirement for the Act will increase employees’ awareness of their rights under the NLRA.

In December 2010, we alerted you to the NLRB’s proposed rule on this matter (NLRB Proposes Rule Requiring Posting of NLRA Rights, December 2010). After receiving thousands of public comments on the proposed rule, the NLRB made several revisions to the proposed rule including:

  • Employers will not be required to distribute the notice via email, voice mail, text messaging or related electronic communications even if they customarily communicate with their employees in that manner; and
  • The employee notice detailing employee rights protected by the NLRA now includes an employee’s right not to join a union and details unlawful union conduct.  

Also in response to comments, the NLRB acknowledged that an employer has the right, under section 8(c), to legally express its opinion regarding unionization in its workplace to “counterbalance” the posting – as long as the opinion is expressed in a non-coercive manner.

There are no record-keeping or reporting requirements and the Board cannot impose fines for failing to post the notice. However, failure to post the notice may be treated as an unfair labor practice under the NLRA. The Board has affirmatively stated that the NLRB will assume that employers failing to post the notice, in most cases, are unaware of the new rule and will comply when requested.

On the other hand, if an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA. And, if an employer has failed to post the notice, the Board may also extend the six month statute of limitations for filing a charge involving other unfair labor practice allegations.

Copies of the notice will be available by November 1, 2011, at no charge from the Board’s Regional Offices or can be downloaded from the NLRB’s website. Translated versions of the posting will also be available.