On August 25, 2011, the National Labor Relations Board (NLRB) issued a press release in which it announced its final rule related to the Notification of Employee Rights under the National Labor Relations Act (NLRA). Private-sector employers (including labor organizations) whose workplaces fall under the jurisdiction of the NLRA will be required to post a notice of employee rights under that Act. In addition, employers who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site will be required to post the Board’s notice at those sites. The proposed rule has been pending since December of last year, and will take effect on November 14, 2011, at which time the required notices must be posted.
The final rule requires employers to post and maintain the NLRB notice in conspicuous places, and to take “reasonable steps” to ensure that the notices are not altered, defaced, or covered by any other material, or otherwise rendered unreadable. Copies of acceptable notice will be available from the NLRB’s regional offices, but also be downloaded from the NLRB website. Under the final rule, employers have the right to post their own notice as well. While the final rule addresses the issue of whether employers may post their own notices informing employees of the company’s position, the fact that proposed Notice language has been suggested by the NLRB is a likely hint that employer-drafted notices should include some or all of the proposed language.
The final rule also specifically addresses the issue of multi-national workforces in the US, and provides that where 20% or more of a workforce “is not proficient in English and speaks a language other than English,” the employer must provide notice in the language that such employees speak. The rule goes further to require that if an employer’s workforce “includes two or more groups constituting at least 20 percent of the workforce who speak different languages, the employer must provide the notice in each such language." The NLRB has offered to provide translations of the notice.
The final rule lists a number of exemptions from the notice posting requirement including, for example, state or political subdivisions. In addition, the final rule states that federal contractors may comply with the provisions of the NLRB’s posting requirement by posting the notices to employees already required under the DOL’s notice posting rule, and will not have to post a second notice.
Sanctions will be imposed against employers who fail to comply with the posting requirements after November 14, 2011. Primarily, an employer’s failure to post the notice may be treated as an unfair labor practice under the NLRA. However, the rule also states that the unfair labor practice case typically will be closed without further action if an employer was unaware of the rule and complies when requested. However, in any event in which notice has not been posted, the Board may extend the six-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer. Further, if an employer knowingly and willfully fails to post the notice, the failure also may be considered evidence of unlawful motive in any unfair labor practice case involving other alleged violations of the NLRA.