In late 2011, the National Labor Relations Board ("NLRB") issued its final rule that would have required private employers subject to the National Labor Relations Act ("NLRA") to post notices setting forth employees' rights under the NLRA. Two lawsuits were filed almost immediately after the NLRB issued its rule, resulting in the NLRB postponing the deadline for employers to post the notices to April 30, 2012. On Tuesday, April 17, the U.S. Court of Appeals for the District of Columbia granted an emergency injunction postponing the notice-posting requirement pending the court's review. The NLRB's website has advised that regional offices will not implement the posting requirement pending resolution of the court action.

In the District of Columbia case, filed by the National Association of Manufacturers ("NAM"), the trial court upheld the major provisions of the rule, concluding, "The NLRA granted the [NRLB] broad rulemaking authority to implement the provisions of the Act, and that the [NLRB] did not exceed its statutory authority in promulgating Subpart A of the challenged rule - the notice posting provision…"

Nonetheless, the court struck the penalties that the Rule imposed for failing to post the notice: "…the provision of Subpart B that deems a failure to post to be an unfair labor practice, and the provision that tolls the statute of limitations in unfair labor practice actions against employers who have failed to post, do violate the NLRA and are invalid as a matter of law."

NAM appealed the D.C. decision and sought an emergency injunction preventing the NLRB's notice-posting requirement from taking effect on April 30, 2012. The Court of Appeals granted the emergency injunction. The court expedited the appeal, and it is currently scheduled for oral arguments in September 2012.

A District Court in South Carolina struck down the posting requirement on April 13, holding the NLRB had no authority to require employers to post such notices.

The NLRB's Rule, titled Notification of Employee Rights Under the National Labor Relations Act, would require, "All employers subject to the NLRA must post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures…" Employers that post personnel policies or workplace notices on internal or external websites would also be required to post a link to the new NLRB notice on such websites. Employers with workforces comprised of at least 20% of employees who are not proficient in English would need to post the notice in translated versions as well under the Board's rule. The poster is already available in 26 languages at no charge, and can be found at any NLRB regional office or on the NLRB website, https://www.nlrb.gov/poster.

We will keep you advised of any updates on the posting requirement