The National Labor Relations Board (“NLRB”) issued a final rule on August 30, 2011, that requires all employers covered by the National Labor Relations Act (“Act”) to post an employee rights notice (“Notice”) informing employees of their rights under the Act. The final rule comes after the NLRB received and considered comments about its proposed Notice rule published in December 2010. Covered employers will have to post the new Notice as of November 14, 2011. The Notice will likely make many employees more aware of their rights under the Act, and employers should be ready to take appropriate steps to address potential increased unionization efforts as a result.
Which Employers Must Post The Notice?
Most private-sector employees are covered by the Act and will have to post the Notice. Only agricultural employers, railroad employers, airlines and very small employers are not covered by the Act. As a rule of thumb, the Act covers retail businesses with gross annual revenues of at least $500,000 and non-retail businesses that provide goods or services out of state or purchase goods or services from out of state with a value of at least $50,000. Lower monetary limits apply for some specific employers. Both unionized and non-unionized employers covered by the Act must post the Notice regardless of how many employees they have.
What Kind Of Notice Must Be Posted And Where Should It Be Placed?
Covered employers must post an 11” x 17” poster in conspicuous places where similar posters are readily seen by employees, including all places where notices to employees concerning personnel rules or policies are customarily posted. The poster can be downloaded from the NLRB’s website (www.nlrb.gov/poster ) and printed on one 11” x 17” sheet or two 8.5” x 11” sheets taped together. Employers can also post commercially available “all-in-one” posters that contain the NLRB Notice and other federally mandated labor and employment notices, so long as the “all-in-one” poster does not alter the size, content, format or style required by the NLRB. In addition to posting the Notice physically, the Notice must also be posted on the employer's intranet or internet site, if the employer customarily communicates with its employees about personnel rules or policies by such means.
If at least 20 percent of an employer’s workforce is not proficient in English and speaks a different language, the Notice must be posted in English and the other language. If the employer’s workforce includes two or more groups constituting at least 20 percent of the workforce who speak different languages, the employer must either physically post the Notice in each of those languages, or post the Notice in the language spoken by the largest group of employees and provide each employee in each of the other language groups a copy of the Notice in the appropriate language. The final rule indicates that the NLRB will be preparing notices in other languages and will provide a website link to notices in other languages for employers that also have to post electronically.
What Does The Notice Say?
The Notice informs employees that they have the right to do the following:
Form, join or assist a union;
Bargain collectively with their employer over wages, benefits, hours and other working conditions;
Discuss their wages, benefits, working conditions or union organizing activities with each other or a union representative; or
Refrain from doing any of the aforementioned activities.
The Notice also provides examples of unlawful conduct by employers and unions and instructs employees on how to contact the NLRB with questions or to file a complaint.
What About Federal Contractors?
Federal contractors are covered by the Notice requirement. However, the NLRB’s final rule states that federal contractors who post the notice as required under the U.S. Department of Labor’s notice posting rule, 29 C.F.R. Part 471, which informs employees of their rights under the Act, will be considered in compliance with the NLRB’s final rule and do not have to post the NLRB Notice.
What Are The Penalties For Not Posting The Notice?
The final rules contain three penalties for failing to post the Notice. An employer’s failure to post the Notice could result in an unfair labor practice charge before the NLRB. The final rule states an unfair labor practice charge for failing to post the Notice will usually be closed without further action, provided the employer posts the Notice when requested to do so. The NLRB may also extend the six-month statute of limitations for filing an unfair labor practice charge against the employer. If the failure to post the Notice is willful, the failure may be considered evidence of an unlawful motive in an unfair labor practice case involving other alleged violations of the Act. There are no monetary penalties for failing to post the Notice.
Employers required to post the Notice should see to it that the Notice is properly posted by November 14, 2011, and they should review their other posted notices to ensure that they are compliant with the various state and federal law posting requirements. Employers should also take steps to make sure that their managers and supervisors are aware of the restrictions placed upon them by the Act, review their union avoidance strategy to reduce the likelihood of a union organizing campaign, and be ready to respond to any unionization activity.