Wednesday, October 5, 2011

NLRB Posting Rule and Current Status

On August 25, 2011 the National Labor Relations Board (NLRB) issued a final rule called “Notification of Employee Rights under the National Labor Relations Act”. The rule was to be effective 75 days from publication, putting the effective date as either November 9, 2011 or November 14, 2011 (the NLRB put out a press release creating some confusion on the effective date).

In summary, the rule requires covered employers to notify employees of their rights to engage in organized activities (concerted activity) and apprises such employees of their rights to raise complaints concerning terms and conditions of employment. For instance, the notice states that employees have a right to:

• Organize a union to negotiate concerning wages, hours, and other terms and conditions of employment.

• Form, join or assist a union.

• Bargain collectively through representatives of employees’ own choosing over wages, benefits, hours, and other working conditions.

• Discuss terms and conditions of employment or union organizing with co-workers or a union.

• Take action with one or more co-workers to improve working conditions by, among other means, raising work-related complaints directly with the employer or with a government agency, and seeking help from a union.

• Strike and picket, depending on the purpose or means of the strike or the picketing.

• Choose not to do any of these activities, including joining or remaining a member of a union.

The notice requires employers subject to the NLRA to post a notice in 11x17 format much in the same way that other rights have to be posted, such as wage and hour and EEO notices. However, it also 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, however.

Failure to post the notice may be treated as an unfair labor practice (ULP) under the NLRA. If an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an ULP case involving other alleged violations of the NLRA. Note that the NLRA, and this rule, apply to private employers that have an impact on interstate commerce. The NLRA specifically excludes public employers, railway and airline employers, and people who are employed as agricultural laborers. The law covers a retail or service establishment with annual gross receipts of at least $500,000. It also covers manufacturing companies that ship at least $50,000 worth of goods across state lines, or that purchase at least $50,000 worth of goods from out of state.

A copy of the poster can be found here.
But, the rule is being challenged in a U.S. District Court in Washington, DC. If successful, the lawsuit would block the notice positing requirement.  But for now, employers should presume that they are to comply with this rule.

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