On August 25, 2011, the National Labor Relations Board (NLRB) announced its final rule related to the Notification of Employee Rights under the National Labor Relations Act (NLRA). Under the rule, private-sector employers whose workplaces fall under NLRA jurisdiction will be required to post a notice of employee rights under that Act. 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. The proposed rule has been pending since December of last year, and was to have taken effect on November 14, 2011, at which time the required notices were to have been posted. The Board received over 7,000 comments – from employers, employees, and even unions – during the comment period. Most of those objected to all or parts of the new rule.
Earlier this week, the National Labor Relations Board (NLRB) issued a press release announcing its decision to postpone the implementation date for the notice until January 31, 2012, ostensibly to allow for enhanced education and outreach to employers. However, it also will provide time for the Board to review and analyze actions challenging the notice, and to assess challenges to the Board’s authority to create or enforce a rule requiring such notice. This firm is actively involved in the issues, and is representing the U.S. Chamber of Commerce and the South Carolina Chamber of Commerce in an action challenging the rule. According to Cheryl Stanton, a shareholder in Ogletree Deakins’ Morristown, New Jersey office: “We are gratified that the NLRB has heeded the parties’ request that the Board postpone implementation of the new posting requirement to permit a measured and thorough judicial review of whether the Board exceeded its authority in this rulemaking process.”
Employers who fail to post the notice after the new deadline may be subject to sanctions for an unfair labor practice under the NLRA, and, 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 (ULP) allegations against the employer. This means that an employer’s failure to post the required notice may allow employees additional time within which to file ULP charges 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, meaning that the failure to post could inadvertently provide adverse evidence in an unrelated ULP matter.