Sept. 21, 2011 New Employee Rights Posting Requirement Takes Effect November 14

The National Labor Relations Board ("NLRB") recently adopted a final rule requiring employers to post a notice informing employees of their rights under the National Labor Relations Act, including, among other things, the right to form, join or assist a union and bargain collectively.  The NLRB just released the notice, which can be downloaded here.

The posting requirement, which takes effect November 14, 2011, applies to virtually all private-sector employers regardless of whether their employees are unionized.  Indeed, the notice must be posted by all private employers subject to the NLRB’s jurisdiction, which excludes only agricultural, railroad and airline employers, as well as very small employers that conduct an insufficient volume of business to have more than a slight effect on interstate commerce.  This is generally defined as less than $500,000 in sales volume for retail businesses and less than $50,000 of goods or services provided or purchased across state lines for non-retail businesses.

The notice must be displayed in areas where other workplace notices are posted.  Additionally, employers who customarily post personnel policies on internet or intranet sites must also provide a link to the poster on those sites.  A similar posting requirement took effect for federal contractors in June of 2010.

Failure to comply with the new posting requirement may be deemed an unfair labor practice, can result in tolling the applicable statute of limitations for filing an unfair labor practice charge and, in certain NLRB proceedings, may be considered evidence of unlawful motive.

What This Means

The final rule is already being challenged in pending litigation.  For the time being, however, employers must prepare to post the notice in appropriate locations by November 14.  Employers should also consult with counsel to assess whether additional proactive measures should be taken in conjunction with the posting.  For example, employers might consider training managers and supervisors regarding how best to respond to employees' questions about the posting and otherwise auditing compliance with relevant personnel policies.

This E-Update was authored by Lisa Frank.  For more information or questions, please contact Ms. Frank or any Paul, Plevin attorney at (619) 237-5200.