NLRB Final Rule Will Require Employers to Post and Distribute Notice of Employees’ Rights to Unionize
September 1, 2011
Todd D. Steenson- Chicago
Employers covered by the National Labor Relations Act (NLRA) will be required to post notices informing all employees of their rights under the NLRA under a National Labor Relations Board final rule scheduled to take effect on November 14, 2011.
The final rule confirms the NLRB’s proposed rule issued in December 2010. It requires all employers subject to the NLRA to post in “conspicuous places” in all worksites an 11-by-17-inch notice form describing employees’ labor law rights, and to publish the notice on an intranet or Internet site if the employer customarily uses such media to communicate with employees about employment rules and policies. The NLRB has created responses to Frequently Asked Questions regarding the notification requirement.
Which Employers Are Covered?
The rule covers all employers subject to the NLRA, whether or not they are currently unionized. This includes insurance companies and related employers. NLRA coverage includes retail businesses with an annual gross volume of business of $500,000 or more and nonretail businesses with annual inflows or outflows across state lines that meet or exceed $50,000. The NLRB has estimated that the “great majority” of six million small businesses in the United States will be required to comply with the notice posting requirement.
What Must Be Posted?
Poster. Under the final rule, private sector employers that are subject to the NLRA would be required to post in every workplace, in conspicuous places readily seen by employees (including all places where other employment-related notices are posted), an 11-by-17-inch poster that informs employees of their rights under the NLRA. The poster states that employees have the right to discuss their working conditions; to act together to improve wages and working conditions; to form, join and assist a union; to bargain collectively with their employer; to strike; and to choose not to do any of these activities. The poster also provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with complaints. The final rule does, however, drop the initial proposal that the notices must be printed in color.
Foreign Language Notices. The final rule provides that in workplaces in which 20 percent or more of the employees are not proficient in English and speak another language, the employer must provide the notice in the language the employees speak. If an employer’s workforce includes two or more groups that speak different languages other than English and together comprise more than 20 percent of the workforce, the employer must either post the notice in both languages or post the notice in the language spoken by the greatest number of employees; such an employer must also provide copies of the notice in the other languages to the other employees. Similar requirements for electronic posting would apply if employers customarily provide employment-related policies to foreign-speaking employees electronically.
How Do You Get the Notice? The Notice will be available from the NLRB in both printed form and by download. A copy of the required Notice in English is available from the NLRB website at www.nlrb.gov/poster. In addition, copies of the Notice will soon be available without charge from any NLRB regional office. An employer will not be liable for failing to post a Notice in a particular language if the NLRB has not provided a Notice in that language.
Electronic Communications. In addition to posting a physical Notice, the final rule requires employers that customarily communicate with their employees by intranet or Internet concerning employment-related rules and policies to post the notice on their intranet or Internet site as well. Such employers must either display an exact copy of the Notice poster on their intranet or provide a link to the poster with an introduction that states “Employee Rights Under the National Labor Relations Act.” The notice must be posted “no less prominently than other notices to employees.”
Employers are not required to distribute the posting by email, Twitter or other electronic means.
Penalties for Non-Compliance
The final rule states that the NLRB will 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)
Member Hayes Dissents
NLRB member Brian Hayes, the NLRB’s only Republican member, dissented from both the proposed rule issued in December 2010 and the publication of the final rule. He said the Board lacked authority to require the notice posting and that it was not necessary. Rather, he contended that “[m]y colleagues seek through promulgation of this rule to reverse the steady downward trend in union density among private sector employees in the nonagricultural American workforce.”
What This Means to Employers
The final rule is facing challenges in Congress and the courts. Two bills challenging the posting rule – the Employee Workplace Freedom Act (H.R. 2833) and the Employer Free Choice Act (H.R. 2854) – were introduced in the House of Representatives this month. Both of these bills would overturn the posting rule and further prohibit the NLRB from promulgating or enforcing “any rule that requires employers to post notices relating to” the NLRA.
Moreover, the National Association of Manufacturers (NAM) and the National Federation of Independent Business have filed a lawsuits claiming that the NLRB exceeded its authority in issuing the posting requirement and asking a court to nullify the rule.
At the same time, we expect that employers will need to be ready to comply with the posting requirement in all their workplaces by November 14, 2011. Employers can expect that unions will be policing employers’ compliance with the notice posting requirement, filing unfair labor practice charges against employers that fail to post the notice, and using evidence that employers have not posted the notice to support union organizing campaigns. Unions are likely to assert that an employer’s failure to comply with the notice posting requirement shows that they are unwilling or unable to meet their legal obligations to their employees, and that the employees need a union to protect them.
The posting of a notice setting out employees’ rights to unionize in all workplaces is likely to raise the visibility of employees’ rights under the NLRA and lead to more union organizing. The posting requirement may lead to the following:
- more discussion among employees regarding their wages, benefits and working conditions, and perhaps more complaints to employers about working conditions by groups of employees
- more collective efforts by employees to obtain government assistance with work-related issues (EEOC filings, FLSA collective actions)
- more union organizing efforts
To respond to these issues, employers should consider doing the following:
- Train managers regarding employees’ rights under the NLRA, particularly their rights to discuss their working conditions (on non-working time), and bring group complaints to management without fear of discipline or reprisal.
- Review work rules, including non-solicitation and non-distribution policies, social media policies, and confidentiality policies. These kinds of policies can be found to violate the NLRA even if they are never enforced. Employers can expect unions to aggressively challenge policies to again provide a springboard for organizing.
- Consider whether to take proactive steps to avoid union organizing, including promoting a union-free philosophy, reviewing your management and treatment of employees, including providing positive reinforcement, increasing communication with employees about both positive and negative changes in the workplace, and showing employees that managers are their best advocates.
We will continue to monitor the status of the Notice Posting Rule and promptly notify you of any significant updates.
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