Today the NLRB issued its final rule requiring that employers subject to the NLRA post a detailed notice regarding employees’ rights under the Act. The notice sets out a detailed description of employee rights under the NLRA, consequences for violations of those rights, and how to contact the NLRB regarding questions or violations. The final rule, which includes a copy of the required notice, can be found here. The rule includes information from which employers can determine whether they subject to the posting requirements.
Member Hayes dissented over the new rule and the majority’s stated purpose for the rule:
Surely, no one can seriously believe that today’s rule is primarily intended to inform employees of their Section 7 right to refrain from or to oppose organizational activities, collective bargaining, and union representation. My 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.
Member Hayes also believes the Board lacks authority to promulgate the rule and that the Board’s action is arbitrary and capricious and, therefore, invalid. He predicts
. . . I am confident that a reviewing court will soon rescue the Board from itself and restore the law to where it was before the sorcerer’s apprentice sent it askew.
But for now, at least, employers subject to the new rule will have to post the notice beginning November 14, 2011.
Here are some highlights of the posting requirement:
- The notice must be at least 11 inches by 17 inches (or two 8 1/2 x 11 sheets taped together).
- The notice must be posted in conspicuous places where the notice will be readily seen by employees, including all places where notices to employees concerning personnel rules or policies are customarily posted.
- If an employer customarily communicates with its employees about personnel rules or policies on an intranet or internet site, in addition to the requirement of putting up the actual poster, the employer must also post the notice on the site. This can be done by downloading and posting the notice or linking to the Board’s website that contains the poster. If linking, the link must read “Employee Rights under the National Labor Relations Act.”
- Federal contractors that comply with the Department of Labor’s notice-posting rule regarding rights under the NLRA are deemed in compliance with the NRLB’s rule and do not have to post a second poster.
- Special rules apply if 20 percent or more of an employer’s workforce are not proficient in English:
- If 20 percent or more of an employer’s workforce are not proficient in English but speak the same foreign language, the notice must be posted in that language.
- If the employer’s workforce includes two or more groups constituting at least 20 percent of the workforce who speak different languages, the notice must be either posted in those languages or posted in the language of the largest group and provide each employee of the other language groups a copy of the notice in the appropriate language.
- Employers can request from the Board a poster in a particular language. If a poster is not available in that language, employers are not liable for non-compliance until the notice becomes available in that language.
Consequences for failing to comply with the rule include:
- The Board construes failure to post the notice as a unlawful interference with Section 7 rights in violation of Section 8(a)(1).
- The Board will customarily order the employer to post the notice and to post a remedial notice.
- The the 6-month limitations period in which an unfair labor practice charge must be filed will be tolled (unless the employer proves the employee had actual or constructive knowledge of the conduct alleged to be unlawful and that such conduct violated the NLRA, yet failed timely to file a charge).
- A knowing and willful failure to post is considered evidence of an unlawful motive in those unfair labor practice proceedings in which motive is an issue.