On August 30, 2011, the National Labor Relations Board issued a final rule that will require covered employers to post and disseminate a notice to employees summarizing the rights protected by the National Labor Relations Act.  This article addresses the immediate issues raised by the new requirement, as well as the broader concerns it raises for employers going forward. 

The NLRB has recently exercised its rulemaking authority to issue a regulation requiring all employers subject to the National Labor Relations Act to post a notice summarizing the rights of employees under the statute.  The posting requirement takes effect November 14, 2011.

The required notice consists of a summary of the rights established by the NLRA, including the right of employees to form a union and to engage in other collective activities to seek improved terms of employment.  The notice also includes a non-exhaustive list of employer conduct that is unlawful under the statute, including the termination of employees in retaliation for the exercise of rights protected by the NLRA and other actions intended to dissuade individuals from joining a union.  The notice explicitly encourages employees to contact the NLRB if they believe a violation of the law has occurred.       The regulation requires that the notice be posted in those locations in the workplace where the employer’s notices to its employees are customarily posed.  In addition to the requirement to post a copy of the notice in the workplace, employers who customarily post personnel and rules and policies on an internet or intranet site are required to also post the notice electronically.  The notice must be posted in English and in another language if at least twenty percent of the employer’s workers are not proficient in English and speak the other language.

Employers can obtain a copy of the notice free of charge from the NLRB.  The notice is also available for downloading from the Board’s website, at http://www.nlrb.gov/poster.

Takeaway for Employers

The new posting requirement applies regardless of whether an employer’s workplace has already been unionized.  Non-unionized employers will therefore need to be mindful of the effect that the notice may have on employees, and may want to consider whether to proactively address the issue of unions with their employees.  At a minimum, employers who have not yet developed a contingency plan for responding to potential organizing activity will need to become more attuned to the possibility of such activity in light of the fact that information on unionization will now be displayed by law at their own places of business.

Editor’s Note: As of the time of publication, at least one lawsuit has been filed seeking to enjoin implementation of the new posting requirement as beyond the rulemaking authority of the NLRB. National Association of Manufacturers v. National Labor Relations Board, et al., Case No. 1:11-cv-1629 (filed Sept. 8, 2011 in the U.S. District Court for the District of Columbia). Future issues of this newsletter will report on any developments arising out of such legal challenges.