NLRB Requires Most Employers to Post New Notice by January 31, 2012

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The National Labor Relations Board (“NLRB”) recently issued a Final Rule that requires most private-sector employers to post a notice by describing certain employee rights such as the “right to organize” under the National Labor Relations Act (“NLRA”). On October 5, the National Labor Relations Board extended the date for the notice to be posted from November 14 to January 31, 2012. Employers must post the “Notification of Employee Rights Under the National Labor Relations Act” where other workplace notices are typically posted and employers that post notices to employees regarding personnel rules or policies on an internet or intranet site will be required to post the NLRB notice, or a link to the NLRB site, on the computer-accessed site as well. Already the National Labor Relations Board has been sued to have the Rule declared unlawful.

Who Must Post the Notice?

Unless the Rule is declared unlawful, the posting requirement applies to all private sector employers subject to the NLRA, regardless of whether their workforces are unionized, partially unionized or non-unionized. Employers who are excluded from the NLRA’s jurisdictional coverage are not required to post the notice. Small employers “in retail businesses, including home construction,” must comply with the posting notice if they have a gross annual volume of business of $500,000 or more, and the business has more than de minimis involvement in interstate commerce. The rule also includes a table identifying specific “miscellaneous” employer categories and sets various gross annual volume of business requirements (for instance, $250,000 for day care centers, $100,00 for nursing homes, $250,000 for law firms and $250,000 for hospitals, to name a few). Non-retail small employers must comply with the posting notice if there is an outflow of goods or services provided by the employer out of state, or an inflow of goods or services purchased by the employer from out of state, of at least $50,000. In addition, employers who only employ individuals excluded from the NLRA’s “employee” definition (e.g., agricultural and domestic workers) and organizations who are not “employers” under the NLRA (e.g., railroad and airline employers) are excepted from the posting requirement. The final rule also applies to federal contractors who already are required by the Department of Labor (DOL) to post a similar notice of employee rights.

Posting Requirements

The required Notice is available for download in English from the NLRB website at www.nlrb.gov/poster. Notices will be available in languages other than English, and the Rule provides that an employer will not be liable for failing to post a notice in a language other than English if it is not yet available from the NLRB.  In workplaces where 20 percent of workers are not proficient in English and speak another language, the employer must provide the notice in the language the employees speak. If an employer’s workforce includes two or more groups totaling at least 20 percent of employees who are not proficient in English, the employer must either post the NLRA notice in both languages or post the notice in the language spoken by the greater number of employees, while providing copies in the second language to employees who are not proficient in English.

Employers are required to post the notice in a conspicuous place, including all places where other notices to employees are posted. The Rule also requires employers to post the notice on the employer’s internet or intranet site if the employer customarily posts notices to employees about personnel rules or policies on those sites. Employers must prominently display the notice on their internet or intranet sites or provide a link to the Board’s website that is titled, “Employee Rights under the National Labor Relations Act.” Employers are not required to distribute the notice via email or text messaging, even if the employer customarily communicates with employees in that manner. Electronic posting is in addition to the physical posting requirements.

An employer that fails or refuses to post the required notice would violate Section 8(a)(1) of the Act, which proscribes employer action “to interfere with, restrain or coerce employees” in their exercise of rights guaranteed by the NLRA. Employers that fail to post the required notices may face significant consequences. If the NLRB finds that an employer has failed to post the required employee notices, the employer will be ordered to cease and desist from the unlawful conduct and post the required employee notice, as well as a remedial notice. Additional remedies may be imposed pursuant to the Board’s remedial authority. Failure to post the employee notice may also affect NLRB proceedings. For example, the statute of limitation for an employee to file an unfair labor practice charge may be tolled and, as a result of an employer’s failure to post the required notice, the NLRB may find it appropriate to excuse the employee from the requirement that charges be filed within six months after the occurrence of the allegedly unlawful conduct. Additionally, the NLRB may consider a knowing and willful refusal to comply with the requirement to post the employee notice as evidence of unlawful motive in an unlawful labor practice proceeding in which motive is an issue.

In anticipation of the posting deadline, employers should determine whether they wish to issue a statement about why the employer believes that the presence of a union in the workplace is unnecessary and the identifying policies and practices that make the cost of a union unnecessary for its employees. Employers may also want to consider training supervisors about how to respond to questions regarding unions. Such training may be beneficial even if the final Rule is blocked since well-trained and informed supervisors may be better able to recognize the early signs of organizing and more capable of acting to potentially neutralize any interest in third-party representation.

Employers with questions about compliance with this new requirement are advised to contact the Lommen Abdo Employment Law Practice Group so that we can assist in addressing the issues raised in this Alert.