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NLRB Postpones Rule Requiring Private Employers To Notify Employees Of Rights Under NLRA
The National Labor Relations Board (NLRB) has issued a final rule which requires employers to notify employees of their rights under the National Labor Relations Act (NLRA). Specifically, the rule requires private-sector employers whose workplaces are covered by the NLRA to post an employee rights notice in the workplace where other workplace notices typically are posted. (If the employer normally posts similar notices electronically, it must do that as well.) The notice informs employees of their right to act together to improve wages and working conditions, to form, join, and assist a union, to bargain collectively with their employer, and to choose not to do any of those activities without fear of retaliation or reprisal. The notice provides employees with examples of unlawful employer conduct and tells employees how to contact the NLRB with questions or complaints. Copies of the notice can be obtained from an NLRB office or downloaded from the NLRB’s website. Similar postings are required by other federal employment laws, such as the Fair Labor Standards Act, Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Family and Medical Leave Act. According to the NLRB’s Fact Sheet, employers who fail to post the notice may be subject to an unfair labor practice charge, and the 180-day statute of limitations for filing a charge involving other unfair labor practice allegations against the employer may be extended. Also according to the Fact Sheet, 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. The rule was proposed earlier in 2011 and submitted to the Federal Register subject to a 60-day comment period. During the comment period, the Board received approximately 6,500 comments and accepted an additional 500 that arrived after the deadline. In response to the comments, some parts of the rule were modified. For example, employers will not be required to distribute the notice via email, voice mail, text messaging or related electronic communications even if they customarily communicate with their employees in that manner. Board Chairman Wilma B. Liebman and Members Mark Gaston Pearce and Craig Becker approved the final rule. Member Brian Hayes dissented. The rule was published in the Federal Register on August 30, 2011, and initially was scheduled to take effect on November 14, 2011, 75 days later. However, on October 5, 2011, the Board postponed the implementation date of the rule to January 31, 2012, to "allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses." Following the adoption of the rule, three different business groups filed lawsuits seeking injunctions against the rule. The lawsuits, filed by the National Association of Manufacturers (NAM), the National Federation of Independent Businesses (NFIB), and the U.S. Chamber of Commerce (Chamber), all allege, in part, that the NLRB did not have authority under the NLRA to promulgate a rule requiring notice posting. The first lawsuit, filed by NAM, as well as the second lawsuit, filed by NFIB, were filed in the District of Columbia circuit, while the Chamber’s lawsuit was filed in South Carolina. Pursuant to a request of the federal court in Washington, DC hearing a legal challenge regarding the rule, the NLRB has agreed to postpone the effective date of the rule to April 30, 2012. The Board's ruling states that it has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule. Link to the NLRB News Release on Final Rule Link to the Final Rule for Notification of Employee Rights Fact Sheet Link to the October 2011 NLRB News Release on Postponement Link to the December 2011 NLRB News Release on Postponement © 2011 Kiesewetter Wise Kaplan Prather, PLC |
