Employers Must Post NLRA Rights by November 14
The National Labor Relations Board (NLRB) has issued a Final Rule which requires most private-sector employers to notify employees of their rights under the National Labor Relations Act (NLRA) by posting a notice. Employers must post the required notice by November 14, 2011. The final rule requires employers that are subject to the NLRA to post and maintain the NLRB notice in conspicuous places, including all places where notices to employees are customarily posted and penalizes employers for non-compliance. Employers must also post the notice on an intranet or an internet site if personnel rules and policies are customarily posted there. If more than 20% of the employer’s workforce is not proficient in English or speaks another language, the employer must also post a translated version of the notice.
The required notice must include a preamble, the rights of employees, a list of illegal employer actions, a list of illegal union actions, and information regarding collective bargaining. The Poster is available on the NLRB website:
This new obligation applies to virtually all private sector employers, regardless of whether or not their workforces are unionized and regardless of whether they are federal contractors. A small number of employers who are excluded from the NLRA's jurisdictional coverage are not required to post the Notice. Below are some general guidelines to use to assess whether your organization may be subject to or excluded from the NLRB notice requirement. Employers who believe that they are excluded from this posting requirement should work with counsel to fully understand whether they are properly excluded:
1. Covered Employers
- Vast majority of private-sector employers.
2. Excluded Employers
- Public-sector employers.
- Employers of agricultural and domestic workers.
- Independent contractors.
- Family-owned businesses that only employ children or a spouse.
- Air and rail carriers covered by the Railway Labor Act.
- U.S. Postal Service.
3. Federal Contractors
Although federal contractors are also covered under this rule, they are already required to post a similar notice of employee rights by the Department of Labor. If the federal contactor properly posts the applicable Department of Labor notice, it will be in compliance with the NLRB Notice requirement without posting the NLRB Notice.
4. Small Employers
The NLRB posting requirement does not apply to very small employers whose annual business is not large enough to have more than a de minimis effect on interstate commerce. Small businesses may or may not be subject to this requirement and should consult counsel to review their annual business value and connection with interstate commerce.
The NLRB acknowledges that it lacks authority to levy fines against an employer that fails to comply with the new posting rule. Nevertheless it has warned that the failure to post the required notice will be treated as an independent violation of the NLRA.
Notably, unlike many federal employment laws, the NLRA contains no mention of a posting requirement of the sort now required by the Board’s new rule. In light of the absence of express statutory authority for the rule, legal challenges to its enforceability have been filed and additional challenges are expected. Until this Rule is amended or overturned in litigation, employers should prepare to post the required Notice or consult counsel if they believe that they are exempt from the posting requirement. If you need assistance on these or other employment issues, please contact Betsy Davis at (804) 697-2035.
Spotts Fain publications are provided as an educational service and are not meant to be and should not be construed as legal advice. Readers with particular needs on specific issues should retain the services of competent counsel.