NLRB Issues Final Rule On Posting Of Employee Rights

The National Labor Relations Board issued a Final Rule that requires employers to notify employees of their rights under the National Labor Relations Act. The issuance of the Final Rule follows a notice and comment period in which employers generally called such a posting unnecessary and misleading. When the final rule was announced, it required posting the notices no later than November 14, 2011. Since that time, the posting rule has been the subject of a number of legal and political challenges. To address these and other concerns, the NLRB has moved the required posting date to January 31, 2012.

The posting requirement applies to all private-sector employers (including labor unions) subject to the National Labor Relations Act, which excludes agricultural, railroad and airline employers. The Board has also chosen not to assert jurisdiction over very small employers, whose annual volume of business is not large enough to have more than a slight effect on interstate commerce.

Covered employers will be required to post the employee notice where other workplace notices are typically posted. Also, 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 on those sites. Copies of the notice are available from the Agency’s regional offices, and it may also be downloaded from the NLRB website.

The notice, which is similar to one required by the U.S. Department of Labor for federal contractors, states 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 refrain from any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints. The notice must be posted in English and in another language if at least 20% of employees are not proficient in English and speak the other language. The Board will provide translations of the notice in the appropriate languages.

Failure to post the notice may be treated as an unfair labor practice under the National Labor Relations Act. The Board investigates allegations of unfair labor practices made by employees, unions, employers, or other persons, but does not initiate enforcement action on its own.

The Board received more than 7,000 comments regarding the proposed rule. In response to the comments, some parts of the rule were modified. Under the Final Rule, for example, employers are not be required to distribute the notice via email, voice mail, text messaging or related electronic communications even if they customarily communicate with their employees in that manner, and they may post notices in black and white as well as in color.