On August 25, 2011, the National Labor Relations Board (NLRB) published its Final Rule requiring employers covered by the National Labor Relations Act (NLRA or Act) to post a notice in the workplace informing employees of their right to organize, bargain collectively and engage in other concerted and/or protected activity under the Act. The new rule is scheduled to take effect on November 14, 2011.

The Rule will apply to all private sector employers under the jurisdiction of the NLRA which excludes those employers in the airline and rail industries. The notice is required to be posted in conspicuous locations in the workplace. The NLRB will provide copies of the required notice at no cost beginning on or about November 1, 2011. Alternatively, employers may download the notice from the agency’s website and print it on 11x17 inch paper. In addition, employers are required to post the notice on their company website or Intranet site if personnel policies are customarily posted electronically. The employer must post the notice in another language if at least 20 percent of the employees are not proficient in English and speak the other language.

Failure to comply with the NLRB’s posting requirement will be treated as an unfair labor practice under the NLRA and such non-compliance may be used to justify tolling of the statutory six-month statute of limitations period with regard to other contemporaneous violations.

The NLRB received more than 7,000 comments after publishing its proposed Notice of Rulemaking in the December 2010 Federal Register. Objection to the Rule focused on whether the NLRB had statutory authority to issue a “legislative” rule. The proposed Rule—as well as the Final Rule—informs employees they have the right to organize and form a union; bargain collectively; discuss wages, terms of employment or union organizing with their coworkers or a union; raise work related issues with their employer or a government agency; and engage in strikes and/or picketing. In response to public comment, and consistent with the express language of the Act, the NLRB added language to the notice indicating that employees had the right not to engage in any of these activities.

Although the penalty for non-compliance does not include any monetary fine, it is anticipated that an employer’s failure to post the required notice may be used as evidence of union animus during the processing of other, unrelated unfair labor practice charges. Accordingly, we recommend that employers take great care to ensure they are in compliance with the NLRB’s new posting requirement.