Employers Must Post and Distribute Notice of Employees’ Rights Under the NLRA, NLRB Proposes
December 23, 2010
Todd D. Steenson- Chicago
Fulfilling expectations that the National Labor Relations Board (NLRB or the “Board”) would increasingly rely upon its rulemaking authority, the NLRB announced on December 21, 2010, a proposed rule that would require every employer subject to the National Labor Relations Act (NLRA) to post a notice informing employees of their rights under the NLRA, including the right to unionize. The Notice of Proposed Rulemaking (NPR) describing the proposed rule was published in the Federal Register on December 22, and could take effect following a 60-day comment period.
The NPR states that the Board “believes that many employees protected by the NLRA are unaware of their rights under the statute. The intended effects of this action are to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions.”
Posting Requirements
Poster. Under the proposed rule, private sector employers that are subject to the NLRA would be required to post, in conspicuous places, an 11-by-17 inch poster that informs employees of their rights under the NLRA. The proposed poster, which is similar to the notice that the Department of Labor now requires federal contractors to post, will state that employees have the 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 these activities. The poster will also provide examples of unlawful employer and union conduct and instruct employees how to contact the NLRB with complaints. The posting requirement would be similar to the obligation to post information about employees’ rights under Title VII and other federal employment laws.
Electronic Communications. In addition to posting a physical notice, the proposed rule would also require employers that communicate with their employees by email, intranet or other electronic means to electronically distribute the notice to all of their employees as well. Employers that communicate to employees on an intranet would be required either to display an exact copy of the poster on their intranet or to provide a link to the poster with an introduction that states “Important Notice about Employee Rights to Organize and Bargain Collectively with Their Employers.” Employers that use email to communicate with employees could satisfy the electronic posting requirement by sending an email containing that link to all of its employees, with the same introduction.
Proposed Penalties for Non-Compliance
The NPR states that the NLRB would enforce compliance with the new posting rule by taking any or all of the following remedial actions:
- declaring failure to post the notice to be an unfair labor practice
- extending the six-month statute of limitations on other unfair labor practice charges where the employer has failed to post the notice, unless there is evidence that the employee at issue actually knew of his or her rights under the NLRA
- deeming a knowing failure to post the notice to be evidence that an employer has an unlawful anti-union motivation in connection with claims requiring a showing of anti-union motivation (e.g., a discharge allegedly based upon union activity)
These proposed penalties underscore the importance for employers of ensuring, if this proposed rule becomes final, that they have met the NLRB’s notice requirements.
60-Day Comment Period
The issuance of the NPR does not mean that the final rule and the posting requirement will be issued in the form stated in the NPR. Employers and unions will have 60 days to comment on the proposed rule, and the NLRB will consider those comments before the rule is issued in final form. Employers or employer groups may also try to challenge the NLRB’s authority to issue the rule.
Employers with concerns regarding this proposed rule should seek legal counsel and consider whether they would like to submit a comment during the 60-day comment period. We do expect that the NLRB will issue a posting rule with requirements similar to those contained in the NPR. We will continue to update you regarding the status of this and other NLRB actions.
Related Practices