NLRB Issues New Rule Requiring Employers to Post Notice of Employee Rights

Tuesday, September 13, 2011

The National Labor Relations Board recently issued a final rule, effective November 14, 2011, requiring all employers subject to the National Labor Relations Act to post a notice of employee rights under the NLRA.  The Board, which does not often engage in rulemaking, justified the issuance of this rule by stating its belief that many employees are unaware of their rights under the NLRA given the low percentage of employees currently represented by unions, the increasing proportion of immigrants in the work force, and the lack of information about labor law on the part of high school students entering the work force.

On a technical level, the burden associated with complying with the rule is minimal.  The Board will provide copies of the required notice, and employers should simply add this notice to the list of posters they already display.

On a more meaningful level, it remains to be seen how the notice will affect the relationship between employers and employees and whether it will, as some have predicted, lead to a resurgence of union activity.

Here's what you need to know:

Who must post the notice?

Most private sector employers are subject to the NLRA, regardless of whether their workforce is unionized, and must, therefore, post the notice.

Some employers, such as government employers, employers subject to the Railway Labor Act, and employers who employ only independent contractors are not subject to the NLRA and need not post the notice. In addition, small employers whose impact on interstate commerce is so slight that the Board has decided not to assert its jurisdiction need not post the notice.

What is contained in the notice?

The notice lists specific employee rights, such as the right to form a union, bargain collectively, discuss terms and conditions of employment, raise work-related complaints, and strike and picket (under certain circumstances).  The notice contains examples of unlawful employer conduct, such as prohibiting soliciting or distributing union literature during non-work time in non-work areas, taking adverse action against employees because of protected concerted activity, threatening to close the workplace if workers choose a union, and promising benefits in order to discourage union support.

The notice also lists examples of unlawful conduct on the part of a union, such as threatening employees that they will lose their jobs unless they support the union, refusing to process an employee grievance because the employee has criticized union officials, and causing an employer to discriminate against an employee because of union-related activity.

How can employers comply?

Employers can obtain a copy of the required notice from the Board, either by downloading and printing a copy from the Board website at https://www.nlrb.gov/poster or requesting a paper copy from a Board office.  The notice must be an 11 x 17 inch poster and can be printed in black and white.

The notice must be posted conspicuously "wherever notices to employees regarding personnel rules and policies are customarily posted and are readily seen by employees, not simply where other legally mandated notices are posted."  Importantly, the notice must also be distributed electronically if the employer "customarily communicates" personnel rules or polices to its employees in that manner.  This may mean prominently posting a copy of the notice to an intranet site or providing a link to the notice as contained on the Board's website.

If 20% of an employer's employees are not proficient in English but speak the same foreign language, the employer must also post the notice in that language.  Employers will be able to obtain copies of the notice in foreign languages from the Board.

What are the consequences for noncompliance?

Employers who fail to post the notice may be found to have committed an unfair labor practice.  The Board anticipates that it will not need to resort to formal adjudication in many cases, assuming that most employers, when told to do so, will simply post the required notice.

In certain circumstances, the failure to post the notice may have more significant consequences.  For example, employees who do not have actual or constructive notice of their rights under the NLRA may have longer than the current 6 months to file unfair labor practice charges.  Also, the "knowing and willful" failure to post the required notice may be used in an unfair labor practice case as evidence of an employer's unlawful motive.

As always, please contact us if you have questions about your obligation under this new rule.