NLRB Expands Notice-posting Requirements: Remedial Notices Must Be Posted Electronically
For nearly seventy years, where the National Labor Relations Board (Board) has determined that an employer violated labor law, it has routinely ordered the employer to post a written “remedial notice” at the work site. Traditionally, this remedial notice was in hard-copy paper format that included a brief recitation of employees’ labor law rights, a list of the violations that the employer was found to have committed, a stated commitment by the employer to cease and desist from that conduct in the future, and a description of the remedial actions the employer would take to resolve the current violation. The remedial notice was required to be posted in “conspicuous places” at the employer’s work site, meaning locations where the postings were likely to be viewed by employees. Long before the existence of the Internet and telecommuting, these places included company bulletin boards, time clocks, and department entrances. However, on October 22, 2010, in the case of J & R Flooring Inc. d/b/a J. Picini Flooring, 356 NLRB No. 9, the Board held that, in today’s age of electronic communications, employers must to do more than merely post notices on bulletin boards.
In its decision, the Board first noted the importance of remedial notices because they inform employees of their rights, encourage free exercise of employee rights, and deter future labor law violations. The Board recognized that the use of “paper notices and wall mounted bulletin boards” for employee communications is no longer prevalent in the workplace and, therefore, does not serve as an effective means of communicating labor law violations to employees. The Board held that “given the increasing prevalence of electronic communications at and away from the workplace, respondents in Board cases should be required to distribute remedial notices electronically when that is a customary means of communicating” with employees or those represented by the unions. As such, the Board specifically expanded its current notice-posting requirements to encompass electronic communication formats.
Board Member Brian Hayes dissented from the majority opinion, arguing that the Board transformed “what has been an extraordinary remedy into a routine remedy.” He also noted that disseminating notices electronically increases the risk that such notices could be “anonymously altered and broadly distributed to nonemployees, customers, stockholders or competitors.” For instance, once an employee receives a remedial notice through e-mail, he could easily copy the content of that notice to a social media website or forward the e-mail to non-employees. The majority dismissed such concerns on the grounds that any electronic posting requirements would be limited to methods customarily used by employers and therefore could not be considered “extraordinary.”
Thus, depending on its “customary” method of electronic communication, an employer may now be required to send remedial notices to employees by e-mail or to post remedial notices on internal and external websites. The decision does not expressly address posting via social media sites; however, it appears that posting on such sites may also be required where an employer regularly uses social media to communicate with its employees.
Significantly, this decision could signal that the Board is also moving toward union-friendly decisions on other issues involving electronic media. The Board’s expansion of posting requirements to include electronic media may indicate that it will look favorably upon a recent claim that disciplining an employee for criticizing an employer’s practices on a social media site violates the employee’s labor law rights. It may also indicate that the Board is inching closer to overturning prior Board decisions that held that an employer may lawfully prohibit the use of employer e-mail to distribute union-related solicitations and distributions as part of a policy prohibiting non-business use of its e-mail systems.