NLRB to Require Private-Sector Employers to Post New Employee Rights Notice

On August 25, 2011, the National Labor Relations Board (“NLRB”) issued a final rule that requires employers to tell employees about their rights to organize a union under the National Labor Relations Act (“NLRA”). The rule and the notification requirement become effective on Monday, November 14, 2011.

Private-sector employers will be required to post the NLRB’s new employee rights notice where they typically post other workplace legal notices. Employers who customarily post notices to employees about personnel rules or policies on an internet or intranet site will have to post the NLRB’s notice on those sites.

The notice is similar to one required by the United States Department of Labor for federal contractors. The notice 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 gives examples of unlawful employer and union conduct and tells employees how to contact the NLRB with questions or complaints.

Here are some common questions and answers about this new notice posting requirement:

Does our company have to post the notice?
The posting requirement covers all private-sector employers subject to the NLRA, which excludes agricultural, railroad and airline employers.

We operate a very small business. Will we have to post the NLRB notice?
Probably. The rule applies to all employers subject to NLRB’s jurisdiction. The NLRB does not 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. If you have a retail business with gross annual volume of more than $500,000, you will be required to post the notice. For non-retail businesses, if the value of your in-flow or out-flow of goods in interstate commerce is more than $50,000 per year, you will be required to post the notice.

There is no union in our workplace; must we post the notice?
Yes. Because NLRA rights apply to non-union employees, as well as unionized employees, all employers subject to the NLRB’s jurisdiction will be required to post the notice.

There already is a union in our workplace; must we post the notice?
Yes. Because unionized employees have the right to seek to become non-union employees and they can be victims of unfair labor practices, their employers who are subject to the NLRB’s jurisdiction will be required to post the notice.

We are a federal contractor. Will we have to post the notice?
The rule will apply to federal contractors, who already are required by the Department of Labor to post a similar notice of employee rights. Posting the Department of Labor notice will be considered compliance with the NLRB rule.

How will we get the notice?
The NLRB will provide copies of the notice on request at no cost beginning about November 1, 2011. These can be obtained by contacting the NLRB at its headquarters or its regional offices. Employers will also be able to download the notice from the NLRB’s website and print it out in color or black-and-white on one 11-by-17-inch paper or two 8-by-11-inch papers taped together. Employers can also satisfy the rule by buying and posting a set of workplace posters from a commercial supplier.

What if we communicate with employees electronically?
In addition to the physical posting, the rule requires every covered employer to post the notice on an internet or intranet site if personnel rules and policies are customarily posted there. Employers are not required to distribute the posting by email, Twitter or other electronic means.

Many of our employees speak a language other than English. Will we have to post the notice in that language also?
Yes. The notice must be posted in English and in another language if at least 20% of employees are not proficient in English and speak that other language. The NLRB will provide translations of the notice, and of the required link to the NLRB’s website, in the appropriate languages.

Will we have to keep records or submit reports rule?
No, the rule has no record-keeping or reporting requirements.

How will the NLRB enforce the rule?
Failure to post the notice may be treated as an unfair labor practice under the NLRA. The NLRB investigates allegations of unfair labor practices made by employees, unions, employers, or other persons, but does not initiate enforcement action on its own. It is most likely that enforcement of the posting rule will occur during investigation of other unfair labor practices. It is highly unlikely that the NLRB will initiate investigations solely related to the posting obligation.

What happens if we don’t post the notice?
In most cases, failure to post the notice will be because employers are unaware of the rule. In such cases, the unfair labor practice case will typically be closed without further action if the employer posts the notice. However, the NLRB may extend its six-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer if the posting is missing. If an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful anti-union motives in an unfair labor practice case involving other alleged violations of the NLRA.

Can we be fined for failing to post the notice?
No, the NLRB does not have the authority to impose fines.

Can we inform employees that they do not have to join a union and that the company does not think that having a union is necessary?
Yes. The NLRA gives employers the right to communicate their views on unions and union organizing to employees, so long as employers do not threaten or coerce employees who are trying to exercise their rights under the law. Employers are free to put up their own postings and to send communications to employees about the topic of unions and union organizing. We can provide guidance and assistance to you in developing language for such a posting or communication.

For More Information

For more information about this rule and what you, as an employer, should do to ensure that your company comports with local, state and federal law, contact Joseph P. Hofmann at 717.399.6643 or the Stevens & Lee attorney with whom you normally consult regarding labor and employment issues.

This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.