[author: Mark Theodore]
A federal appeals court has barred the NLRB's ability to require employers to post the employee rights poster while litigation over the legality of the rule continues.
As we previously discussed, a Federal District Court in South Carolina ruled that the NLRB lacked authority to issue the rule. This occurred after another Federal Court in the District of Columbia held that the rule was valid, but the enforcement mechanism was not. The injunction came in the DC litigation.
Given all of the uncertainty, the DC Circuit Court of Appeals issued a Grant of Injunction Pending Appeal.pdf which effectively acts to stay the requirement pending resolution of the litigation. The Court explained its reasoning as follows:
We note that the Board postponed operation of the rule during the pendency of the district court proceedings in order to give the district court an opportunity to consider the legal merits before the rule took effect. That postponement is in some tension with the Board's current argument that the rule should take effect during the pendency of the court's proceedings before this court has an opportunity to similarly consider the legal merits. We note also that the district court's severability analysis left the posting requirement in place but invalidated the primary enforcement mechanisms for violations of the requirement. The Board has indicated that it may cross-appeal that aspect of the district court's decision. The uncertainty about enforcement counsels further in favor of temporarily preserving the status quo while this court resolves all of the issues on the merits.
So, for the next several months at least, employers are not required to comply with the NLRB's posting requirement. We will keep monitoring the situation and will keep you informed here of new developments.