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Labor Law Alert: New Law Requires Employers to Post Employee Rights Notice by November 14 NLRB Publishes Final Rule for Notification of Employee Rights

Labor and Employment Alert: New Law Requires Employers to Post Employee Rights Notice by November 14, 2011

NLRB Publishes Final Rule for Notification of Employee Rights

September 1, 2011 — The National Labor Relations Board (“NLRB”) published in the Federal Register this week a Final Rule requiring most private-sector employers — even if not unionized — to notify employees of their rights under the National Labor Relations Act (“NLRA”) by posting paper and, where applicable, electronic notices identifying those rights.

The Rule, which was highly controversial due to the perception of some employers that it is intended to unfairly foster union organizing, will take effect 75 days from today. Employers covered by the NLRA should begin posting the notice on November 14, 2011. Employers engaged in interstate commerce (which includes employers who buy, sell, or ship more than $50,000 of goods or services out of state) typically fall within the jurisdiction of the NLRA.

In contrast to most other federal and state employment laws, the NLRA does not require notice to employees of their rights under it. The new rule changes this and requires employers to give notice of employee rights, such as:

    • The right to organize a union to negotiate with an employer concerning wages, hours and other terms and conditions of employment
    • The right to form, join or assist a union
    • The right to discuss terms and conditions of employment or union organizing with co-workers or a union.

The 11-by-17-inch notice required by the Rule is similar in content and design to a notice of NLRA rights that must be posted by federal contractors under a Department of Labor rule. Additionally, covered employers with intranets are required to distribute the notice in electronic form if the intranet is used to post personnel policies and procedures. The NLRB will provide an acceptable form of the notice on November 1.

The NLRB published the following “questions and answers” with the new Rule:

Does my company have to post the notice?
The posting requirement applies to all private-sector employers (including labor unions) subject to the National Labor Relations Act, which excludes agricultural, railroad and airline employers. In response to comments received after the proposed rule was announced, the Board has agreed to exempt the U.S. Postal Service for the time being because of that organization’s unique rules under the Act.

When will the notice posting be required?
The final rule takes effect 75 days after it is posted in the Federal Register, or on November 14, 2011.

There is no union in my workplace. Will I still have to post the notice?
Yes. Because NLRA rights apply to union and non-union workplaces, all employers subject to the Board’s jurisdiction (aside from the USPS) will be required to post the notice.

I am a federal contractor. Will I have to post the notice?
The Board’s notice posting rule will apply to federal contractors, who already are required by the Department of Labor to post a similar notice of employee rights. A contractor will be regarded as complying with the Board’s notice posting rule if it posts the Department of Labor’s notice.

I operate a small business. Will I have to post the Board’s notice?
The rule applies to all employers subject to the Board’s jurisdiction, other than the U.S. Postal Service. The Board has chosen not to assert its jurisdiction over very small employers whose annual volume of business is not large enough to have a more than a slight effect on interstate commerce. The jurisdictional standards are summarized in the rule.

How will I get the notice?
The Board will provide copies of the notice on request at no cost to the employer beginning on or before November 1, 2011. These can be obtained by contacting the NLRB at its headquarters or its regional, sub-regional, or resident offices. Employers can also download the notice from the Board’s website and print it out in color or black-and-white on one 11-by-17-inch paper or two 8-by-11-inch papers taped together. Finally, employers can satisfy the rule by purchasing and posting a set of workplace posters from a commercial supplier.

What if I communicate with employees electronically?
In addition to the physical posting, the rule requires every covered employer to post the notice on an internet or intranet site if personnel rules and policies are customarily posted there. Employers are not required to distribute the posting by email, Twitter or other electronic means.

Many of my employees speak a language other than English. Will I still have to post the notice?
Yes. The notice must be posted in English and in another language if at least 20% of employees are not proficient in English and speak the other language. The Board will provide translations of the notice, and of the required link to the Board’s website, in the appropriate languages.

Will I have to maintain records or submit reports under the Board’s rule?
No, the rule has no record-keeping or reporting requirements.

How will the Board enforce the rule?
Failure to post the notice may be treated as an unfair labor practice under the National Labor Relations Act. The Board investigates allegations of unfair labor practices made by employees, unions, employers, or other persons, but does not initiate enforcement action on its own.

What will be the consequences for failing to post the notice?
The Board expects that, in most cases, employers who fail to post the notice are unaware of the rule and will comply when requested by a Board agent. In such cases, the unfair labor practice case will typically be closed without further action. The Board also may extend the 6-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer. 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.

Can an employer be fined for failing to post the notice?
No, the Board does not have the authority to levy fines.

Was there a public comment period? What was the response?
The Board received more than 7,000 public comments after posting a notice of the proposed rule in the Federal Register. A detailed description of the comments and the Board’s response to them, including responsive modifications to the rule, may be found in the Preamble to the Final Rule.

For more information on the Rule and its application to your business, contact Scott Brink.