The National Labor Relations Board (NLRB) recently published a final rule requiring employers to post workplace notices of employee rights under the National Labor Relations Act (NLRA). The final rule applies to all employers covered by the NLRA, regardless of whether the employer has a unionized workforce. The posting requirement is intended to inform both union and non-union employees of their rights under the NLRA.

The final rule, which takes effect on Nov. 14, 2011, will require covered employers to post an 11-by-17 inch poster in the workplace. The notice is similar to one required by the United States Department of Labor for federal contractors (the new rule does not impose additional obligations on federal contractors). It will state that employees have the right to engage in concerted activity 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 final rule also requires covered employers to post the notice on their company intranet site, if personnel policies are ordinarily distributed in that manner. The notice must be posted in English and in another language if at least 20 percent of employees are not proficient in English and speak the other language.

Failure to adhere to the posting requirements could have numerous consequences. First, noncompliance may be treated as an unfair labor practice. Second, failure to post the notice could provide an employee more time to file an unfair labor practice charge by “tolling” the statute of limitations period under the NLRA. Third, if an employer knowingly and willfully fails to post the notice, the failure may be considered as evidence of an unlawful motive in an unfair labor practice case involving other alleged NLRA violations. Finally, a violation in this context could be utilized by unions as a springboard for organizing. Suffice it to say, it is critical that employers comply with the new rule, as well as take the opportunity to ensure their union-related policies are up-to-date and compliant.

Employers interested in maintaining "union free" status should promptly review policies, training and other resources related to union organizing, and also consider supplemental communications with their employees on this topic.