In a much anticipated move only two days before the expiration of the term of Chairman Wilma Liebman, the National Labor Relations Board has issued a regulation requiring employers to post a notice of employee rights under the National Labor Relations Act (NLRA) at "conspicuous places" in the workplace. The regulation applies to virtually all private employers in the United States with the exception of those in the railway and airline industry, and certain agriculture-related employers.

In addition to posting in the workplace, the notice must also be posted on the internet or company intranet, if the employer routinely communicates employer policies to employees through such electronic means. According to the Board, the rule takes effect 75 days after its publication in the Federal Register, or on November 14, 2011. In the absence of clarification by the Board, employers should probably treat the regulation as effective on the earlier of those two dates.

Failure to post the notice as required by the rule will be punishable as an unfair labor practice under §8(a)(1) of the NLRA, which prohibits employers from interfering with, restraining or coercing employees in the exercise of their rights under the Act. Further, the Board says it may find it appropriate to excuse the six-month statute of limitations on the issuance of a complaint if the employer has not posted the notice, and may also find failure to post as evidence of unlawful motive in any unfair labor practice charge against the employer.

There are serious questions about the authority under §6 of the NLRA of the Board to have issued the regulations in the first place, as well as about several elements of the regulations which appear to contradict the NLRA. For example, the Act flatly states that "no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge . . . unless the person aggrieved . . . was prevented from filing . . . by reason of service in the armed forces . . . ." Yet the Board claims that it may excuse compliance with the statute of limitations based on an employer's failure to post the notice.

There will undoubtedly be additional questions that arise as the rules are applied and employers and their counsel have more experience with them. For now, it is anticipated that some parties may challenge the Board's action in Congress and in the federal courts.