The NLRB’s Poster Child: New Rule Requires Employers to Post Information Regarding an Employee’s Rights Under the NLRA
In August 2011, the National Labor Relations Board (the Board) issued a Final Rule requiring employers to post notices informing their employees of their rights under the National Labor Relations Act (NLRA). The Board issued this requirement, which goes into effect January 31, 2012, in response to its belief “that many employees protected by the NLRA are unaware of their rights under the statute.” The Final Rule applies to all employers subject to the NLRA, which includes all retail businesses with an annual gross volume of business of $500,000 or more and non-retail businesses with annual inflows or outflows across state lines that meet or exceed $50,000. In addition, federal contractors who are already required by the United States Department of Labor to post similar notices must also comply with this new poster requirement.
The New Requirements
As an initial matter, the Final Rule requires covered employers to post an 11-by-17-inch poster that describes employees’ labor law rights. In particular, the poster must state that employees have the right to:
- discuss their working conditions;
- act together to improve wages and working conditions;
- form, join and assist a union;
- bargain collectively with their employer;
- strike; and
- choose not to do any of these activities.
Communicating the Notice to Your Employees
In addition, as discussed below, the Final Rule requires (i) particular methods of communicating the notice, and (ii) that the poster be translated in particular languages.
(i) Method of Communication
To communicate the notice effectively, the notice must be physically posted in areas where an employer typically posts other similar notices to employees. The poster must be displayed at least as prominently as those other notices.
In addition to posting a physical notice, employers that communicate with their employees by internet or intranet regarding other employment-related matters must post the notice on those sites as well. This may be accomplished by posting an exact copy of the poster on the site or by posting a link to the poster with an introduction that states, “Important Notice About Employee Rights to Organize and Bargain Collectively with Their Employers.”
(ii) Foreign Language Requirement
The new rule also requires the notice to be posted in other languages if at least 20 percent of the employer’s workforce is not proficient in English. However, upon request, the Board will provide translations of the notice in other languages, and it will also post the notice in other languages on the Board’s website. Employers will not be required to post the notice in a language that has not been translated by the Board.
Moreover, if an employer’s workforce includes two or more groups that speak a foreign language, which each constitute at least 20 percent of the workforce, the employer has the option of (i) posting the notice in both languages or (ii) posting the notice in the language spoken by the larger group. If the second option is chosen, however, the employer must distribute copies of the notice to the other employees in their own languages (to the extent the notice is available in that other language).
Challenges to the New Requirements
Many employer groups have criticized the new rule, claiming that the Board does not have authority to enact such a rule. Significantly, in September 2011, the National Association of Manufacturers sued the Board over the notice requirement, maintaining that Congress did not expressly authorize the Board to issue the posting rule as it has with other mandatory workplace notices.
The deadline to post the poster with the required information is January 31, 2012. While the federal courts may overturn the notice requirement, employers should plan to follow the above guidelines for now, because once the rule goes into effect (and to the extent that the rule is not overturned), the Board may impose harsh consequences for failure to comply. Specifically, the failure to comply with the notice requirement may be treated as an unfair labor practice under the NLRA. The Board also may extend the six-month statute of limitations for filing a charge involving any other unfair labor practice allegations against the employer who fails to post the notice. Finally, if the Board finds that an employer knowingly and willfully failed to post the notice, such failure may be used as evidence of unlawful motive in the other alleged violation.
Employers’ Ability to Post Their Own Notices
Even if the notice requirement holds up and employers are required to post notices of employee rights under the NLRA, employers are not left without rights
of their own. In fact, section 8(c) of the NLRA allows employers to express their own views on whether the company would benefit from a union, provided management’s communication does not contain a “threat of reprisal
or force or promise of benefit.” Thus, employers may post their own notices that express their view that a union would not be in the employees’ or the company’s best interests.
For further assistance in complying with the Board’s notice requirement, you can visit the Board’s website, where copies of the poster may be downloaded for free, or contact a member of the Troutman Sanders LLP Labor & Employment group.
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