Fenwick Employment Brief - May 2013: NLRB Posting Rule Held Unconstitutional

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The NLRB's controversial requirement that employers post notices informing employees of their rights under the National Labor Relations Act (as reported in our January and May 2012 FEBs) has been held unconstitutional by the District of Columbia Court of Appeals in National Association of Manufacturers v. NLRB.  On May 7, the court determined that the NLRB's enforcement mechanisms for the rule – which made failure to post the rule: (i) an unfair labor practice, (ii) evidence of anti-union animus in other cases, and (iii) reason to toll the limitations period for the filing of an unfair labor practice charge – interfered with employers' free speech rights under both the Constitution and the NLRA.  The court vacated the rule, which means that employers are now relieved of any obligation to post the NLRB notice.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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