NLRB Posting Rule Enjoined Indefinitely


As we previously notified our contacts, last year the National Labor Relations Board (NLRB) promulgated a rule requiring that employers post a notice of employee rights under the NLRB. The NLRB has twice delayed implementation of this rule with a proposed implementation date of April 30, 2012. However, on April 17, 2012 the D.C. Circuit Court of Appeals enjoined the NLRB from implementing the notice posting rule so you are not required to post the notice on April 30, 2012. The injunction will remain in place until the appeal of the district court decision has been decided.

The authority of the NLRB to require such notice has been challenged in at least two different district courts. In March, a district court in Washington D.C. upheld the NLRB’s authority to issue the notice posting rule, but limited the remedies for failure to post. This ruling was appealed by plaintiffs, which resulted in the injunction.

On April 13, 2012, a district court in South Carolina invalidated the rule, holding that despite multiple Congressional amendments to the National Labor Relations Act (NLRA), Congress has never authorized a posting rule and, therefore, the Board lacked the authority to promulgate the rule under the NLRA’s plain language, structure and legislative history. The NLRB is expected to appeal.

We will keep you advised of the progress of the appeals. However, if you have any questions regarding this Alert, please contact any of our Labor & Employment law attorneys.


Labor & Employment Attorneys:

Thomas R. Chiavetta, Jr. (585) 238-2043
James D. Donathen (716) 847-5476
Marc H. Goldberg (518) 472-1224 Ext. 1229
James R. Grasso (716) 847-5422
Christopher L. Hayes (716) 504-5725
Martin F. Idzik (716) 483-3903
Kelly Mooney Lester (518) 472-1224 Ext. 1230
Alisa A. Lukasiewicz (716) 504-5739
Michael R. Moravec (716) 847-7021
Kevin J. Mulvehill (585) 238-2095
Linda T. Prestegaard (585) 238-2029; (212) 508-0425

Phillips Lytle Locations:

Albany Omni Plaza 30 South Pearl Street Albany, NY 12207-3425 (518) 472-1224
Buffalo 3400 HSBC Center Buffalo, NY 14203-2887 (716) 847-8400
Chautauqua 201 West Third Street Suite 205 Jamestown, NY 14701-4907 (716) 664-3906
Garden City 1305 Franklin Avenue Suite 200 Garden City, NY 11530-1630 (516) 742-5201
New York City 437 Madison Avenue 34th Floor New York, NY 10022-7021 (212) 759-4888
Rochester 1400 First Federal Plaza Rochester, NY 14614-1935 (585) 238-2000
Canada The Communitech Hub 151 Charles Street West Suite 152, The Tannery Kitchener, Ontario N2G 1H6 Canada (519) 570-4800

Published In: Labor & Employment Updates

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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