Labor & Employment Law Blog

In an announcement dated August 25, 2011 the National Labor Relations Board confirmed the approval of a final rule which requires all employers under NLRB jurisdiction to post a Notice which will inform employees of their rights. Those rights include to form and join unions and to engage in concerted activities for mutual aid and protection, which may include group protests over working conditions or demands for workplace change through social media. A fact sheet with additional information about the rule can be downloaded by clicking here.

 Employers will be required to post a hard copy Notice which they can obtain from NLRB offices or by download from www.nlrb.gov when the Notice becomes available.  The NLRB indicates the Notice will be available "on or before November 1, 2011." Where an employer communicates with its employees by electronic means, such as Internet or Intranet, the employer may have a duty to post the Notice electronically as well.

 The NLRB intends to view an employer's failure to post the Notice as an unfair labor practice. This is an important point, as failure to post the Notice could put an employer at an immediate disadvantage if the employer faces a union organizing campaign and the union makes an issue of the Notice during the campaign. Charges are often used as leverage points to put a targeted employer under additional scrutiny and threat of prosecution while an election case is in progress.

 Many employers who are unfamiliar with the NLRB or who have not dealt with it in many years may doubt that they are subject to NLRB jurisdiction. Those employers should consider carefully their course of action. NLRB has exercised a broad view of its jurisdiction, with dollar volume standards that have not changed in decades. Absent a detailed review with legal counsel establishing otherwise, the vast majority of private sector employers should consider themselves subject to NLRB and expect to have to comply with the rule.

 The rule will parallel in large part a Department of Labor rule implemented for contractors who work with the federal government.

 It is expected that the NLRB rule will face legal challenge in the courts.  Some employers may take the view that it is best not to post or educate a non-union workforce on the right to unionize. That approach will have risks. A safer approach may be to post the Notice pending an outcome on such challenges. Management retains its rights to educate employees, if and when it sees fit to do so, about union organizing and the pros and cons of doing so provided that the message does not violate NLRB standards through threats or coercion.

 Private sector employers are encouraged to seek guidance on how this new NLRB rule will impact their business and communications with employees.