Employment Law Alert

NLRB Abandons Notice Posting Requirement

January 1, 2014

The National Labor Relations Board (NLRB) has given up trying to enforce its controversial notice posting requirement. As some may recall, back in September 2011, MBBP notified clients that the NLRB had published a new rule requiring that employers post a notice to employees informing them of their rights under the National Labor Relations Act (NLRA), including rights to act together to improve wages and working conditions, to form and join a union, and to bargain collectively. The rule initially was to take effect on November 14, 2011.

Subsequently, in October 2011, we notified clients that the NLRB was postponing the implementation date for the notice posting requirement by two months (to January 31, 2012) in order, the NLRB stated, “to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.”

Then, in January 2012, we notified clients that the deadline had been postponed to April 30, 2012. The NLRB explained that it had “agreed to postpone the effective date of its employee rights-notice-posting rule at the request of the federal court in Washington, DC hearing a legal challenge regarding the rule.” The NLRB said that it “determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule.” The challenges included arguments that the NLRB had no authority under the NLRA to make such a rule and that the rule interfered with employers’ right to refrain from speech, thus violating the First Amendment to the U.S. Constitution.

Then, in April 2012, we notified clients that the U.S. Court of Appeals for the District of Columbia Circuit (the DC Circuit) had temporarily blocked the NLRB from implementing and enforcing the notice posting requirement.  Later, in 2013, the DC Circuit and the U.S. Court of Appeals for the Fourth Circuit both invalidated the notice posting requirement.  The DC Circuit ruled that the requirement violated employers’ free speech rights and the Fourth Circuit ruled that the NLRB did not have authority to impose such a requirement on employers.

January 2, 2014 was the deadline for the NLRB to file a petition with the U.S. Supreme Court to review the appellate court decisions.  The NLRB chose not to file a petition, thus effectively abandoning the notice posting requirement.  (Note that this does not impact the requirement under Executive Order 13496 that non-exempt federal contractors and subcontractors post a notice informing employees of their NLRA rights.)  The NLRB’s website now notes: “Appellate courts have enjoined the NLRB’s rule requiring the posting of employee rights under the [NLRA].  However, employees are free to voluntarily post the notice.”

Employers should check their labor and employment law postings to determine whether they posted the NLRA rights notice back in 2011 in response to the NLRB’s notice posting rule.  Many employers did so. Employers who did are free to remove the NLRA rights notices.

If you have any questions, please feel free to contact a member of our Employment Law Group.

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