The NLRB Again Postpones Posting of Employee Rights
On December 23, 2011, the National Labor Relations Board announced that it would delay, until April 30, 2012, the effective date, of its Final Rule requiring all employers subject to the Board’s jurisdiction (i.e., the vast majority of employers doing business in the United States) to post a notice in the workplace informing employees of their rights under the National Labor Relations Act (“NLRA”). The Board’s Final Rule was originally to be effective on November 14, 2011 and was subsequently delayed until January 31, 2012.
According to the Board, the original delay was to “allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.” There have also been legal challenges filed to the proposed Rule. The judge handling the challenges held a hearing on December 19, 2011 and found that the legal issues “deserve more time” than the January 31, 2012 deadline would allow.
When implemented, the Rule will require every employer who is subject to the NLRA (whether or not its employees are already represented by a union) to conspicuously post notices to employees informing them of their rights under the NLRA.
As the Rule is currently written, the notice must be posted in places where it can be readily seen by employees, including the same locations where notices to employees concerning personnel rules or policies are customarily posted. Therefore, the new NLRB notice should be placed in the same area that the employer posts other federally-required notices regarding other employment laws.
The Final Rule also requires that the notice be posted on the employer’s intranet or internet site, if the employer customarily communicates with its employees by such means.
Copies of the notice should be available at no cost either by contacting the NLRB or by downloading the notice from the NLRB’s website. Employers may also purchase a poster from a commercial publisher consolidating the new NLRB notice into a document with the other mandated labor and employment notices, as long as the consolidation complies with the requirements for the size, format, content and style of the NLRB’s notice. Specifically, employers that download and print the notice from the website will have two formats available for the printing and posting: (1) a one-page 11 x 17 inch version, or (2) a two-page 8 ½ x 11 inch version, which must be printed in landscape format and attached together to form the 11 x 17 inch poster.
The required notice adopts the notice now required by federal contractors. Specifically, the notice must state that, among other things, employees have the right to:
- Organize a union to negotiate with their employers concerning their wages, hours and other terms and conditions of employment;
- Form, join or assist a union;
- Discuss the terms and conditions of their employment or union organizing with their co-workers or with a union;
- Take action with one or more co-workers to improve their working conditions by, among other means, raising work related complains directly with their employers or with a government agency, or by seeking help from a union;
- Strike and picket; and
- Choose not to do any of these activities.
The notice also needs to inform employees that it illegal for an employer to, among other things, do the following:
- Prohibit employees from soliciting for a union during non-work time . . . or from distributing union literature during non-work time, in non-work areas;
- Question employers about their union support or activities in a manner that discourages them from engaging in that activity;
- Fire, demote, or transfer employees because they join or support a union;
- Prohibit employees from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances.
If 20% or more of the employer’s workforce speaks a language other than English, the employer must also provide the required notice in the language that the employees speak.
The notice must also state that if an employee believes that his or her employer has engaged in an unfair labor practices, he or she should contact the NLRB within six (6) months using the contact information listed on the notice. If the notice is not posted, however, the NLRB could: (1) consider the action a violation of Section 8(a)(1) of the NLRA, (2) toll the 6-month statute of limitations for filing an unfair labor practice charge, and (3) consider the failure to post the notice as evidence of an employer’s unlawful motive in the unfair labor practice cases.
