CLIENT UPDATE

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August 26, 2011

NLRB Final Rule Requires Notice to be Posted of Employee Rights Under Federal Labor Law

On August 25, 2011, the National Labor Relations Board (“NLRB”) issued a Final Rule that will require employers to notify employees of their rights under the National Labor Relations Act (“NLRA”).  Beginning November 14, 2011, employers must post in the workplace an 11 x 17 notice (“Notice”) that informs employees of their rights under the NLRA – including the right to organize a union, bargain collectively, and engage in protected concerted activity – as well as the right to refrain from such activity.  The Notice provides examples of unlawful employer and union conduct and provides contact information for the NLRB.   If an employer customarily posts notices to employees on an intranet, the notice must also be posted there. 

The NLRB previously proposed the new rule in a notice published in the December 22, 2010, Federal Register.  Our client alert concerning the NLRB’s original proposal is available at       http://www.putneylaw.com/cu_122210.html.  The NLRB received approximately 7,000 comments concerning the Proposed Rule, most of which were critical, in whole or in part, of the proposal.  In response, the NLRB made minor changes to the rule, including clarifying that employers will not be required to distribute the notice via email or other electronic communications with employees.  The Final Rule also clarifies that the Notice must be posted in a foreign language if at least 20% of the employees at a workplace speak a language other than English.       
           
Simultaneously with the adoption of the Final Rule, the NLRB released a fact sheet, which is available on its website: https://www.nlrb.gov/news-media/fact-sheets/final-rule-notification-employee-rights.  The fact sheet reiterates that all private sector employers covered by the NLRA must post the Notice, including those whose employees are not represented by a union. 
           
The NLRB will not levy fines for failing to post the Notice.  However, a failure to post the Notice may be treated as an unfair labor practice under the NLRA.  In addition, the NLRB has indicated that the failure to post the Notice may result in an extension of the 6-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer.  Finally, the Board may consider the knowing failure to post the Notice as evidence of unlawful motive in an unfair labor practice case.  As a result, we recommend that all employers covered by the NLRA comply with the posting requirements of the Final Rule.  The NLRB has indicated that the final version of the Notice will be provided at the Board’s regional offices and on its website.  We anticipate that the Notice will be available prior to the November 14, 2011 deadline.   

If you have any questions regarding the new NLRB Notice posting requirements, please contact us.