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EMPLOYMENT NOTES

New NLRB Rule Requires Employers To Post Notice Concerning Employees' Rights

08.29.2011

On August 25, 2011, the National Labor Relations Board (“NLRB” or “the Board”) issued its final rule (RIN 3142-AA07) requiring employers who are subject to the National Labor Relations Act (“NLRA”) to post a notice informing employees of their rights under the NLRA. In general, the notice states that employees have the right to act together to improve wages and working conditions; to form, join and assist a union; and to bargain collectively with their employer.  It also provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.

The notice must be at least 11 inches by 17 inches in size, and employers are required to post the notice in “conspicuous places where they are readily seen by employees, including all places where notices to employees concerning personnel rules or policies are customarily posted.” If employers customarily communicate their personnel rules or policies electronically, then the notice must also be transmitted in this fashion (i.e. posted on the employers’ intranet database or internet site). Copies of the required notice may be obtained from any of the NLRB’s regional, subregional, and resident offices or may be downloaded from the Board’s website (http://www.nlrb.gov).
 
Employers who fail to post the required notice could be subject to discipline by the NLRB. Perhaps more concerning is that the rule indicates that an employee may be excused from the six-month limitations period for filing an unfair labor practice charge if the employer failed to post the required notice unless the employee “has received actual or constructive notice that the conduct complained of is unlawful.”
 
The rule is scheduled to take effect 75 days after its publication in the Federal Register, which will be November 14, 2011.

Contrary to popular belief, the NLRA applies to both unionized and non-unionized employers. As such, critics assert that this new rule is overbroad and creates a more favorable environment for unionizing. Even a dissenting Member of the NLRB openly questioned whether the Board had the authority to require such notices. Regardless of whether or not this rule unfairly promotes unionization, it inevitably creates yet another obligation that employers must comply with under the NLRA.


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