Federal Court of Appeals Enjoins NLRB From Requiring Employers To Post Notice Of Employee Rights Under Federal Labor Law

As we previously reported here, the National Labor Relations Board (NLRB) made rules which required private sector employers across the country to post a Notice of Rights. This Notice provided a listing of employee rights under federal labor law including the right to form and join unions, to discuss and protest working conditions, and to refrain from such activity. Management groups sued the NLRB in an effort to block the rules and stop the mandatory Notice posting.

The litigation delayed the initial posting deadline from November 30, 2011 to April 30, 2012. A federal district court in Washington, DC ruled that the Notice posting requirement was lawful but that penalties for an employer's failure to post the Notice were not lawful. Separately, a federal district court in South Carolina invalidated the NLRB rule in its entirety including the posting obligation.

With the April 30, 2012 posting deadline looming, and NLRB refusing to make a public statement about the South Carolina ruling, the federal Court of Appeals for the District of Columbia Circuit in Washington, DC had a request for an emergency injunction. On April 17, the Court enjoined NLRB from requiring the Notice posting, thus invalidating the April 30, 2012 posting deadline. The Court will review the NLRB Notice posting regulation in greater detail in late 2012.

As for now, employers need not post the NLRB's Notice of Rights. Other NLRB notices may be required for employers or unions in case-specific situations such as elections or unfair labor practice cases. The injunction against NLRB does not change the duty of federal government contractors to post notices of labor law rights required under Executive Order and implementing regulations

This is an election year with NLRB much in the spotlight based on rule making to expedite union organizing, cases extending legal protections to employees' use of social media, cases restricting employers' use of arbitration agreements, and cases challenging business decisions of employers like Boeing on where to locate work. In this setting, the Notice of Rights is one more lightning rod for both labor law and politics. Private sector employers should stay tuned to see whether NLRB and the courts speak further on the Notice of Rights later in the year.

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