By: Melissa C. Angeline
On August 25, 2011, the National Labor Relations Board announced a new rule that requires private employers to post a notice of employee rights under the National Labor Relations Act (“NLRA”). By November 14, 2011, all employers covered by the Act must post the notice developed by the Board in each workplace, and post the notice electronically on any internet or intranet sites where other personnel rules or policies are posted. This new rule applies to all private-sector employers, with the sole exception of agricultural employers and several other employer types not subject to the NLRA.
The Board has stated that its notice will be similar to the Department of Labor‘s Notice of Employee Rights Under the National Labor Relations Act, which is mandatory for federal contractors. According to the Board, “the notice states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.” Employers will be able to download the notice through the Board’s internet site (www.nlrb.gov), and obtain copies from the Board, by November 1, 2011. Failure to post the notice may be used as evidence of an employer’s unlawful motive in other Board proceedings, and will constitute a separate unfair labor practice. Also, failure to post the notice could have the effect of waiving the employer’s defense that an unfair labor practice brought more than 6 months after the event at issue was filed too late and should be dismissed.
We expect that employers will aggressively challenge this rule and pursue this issue up to the Supreme Court. In the meantime, employers should be ready to post the notice when it becomes effective on November 14, 2011.
Melissa C. Angeline is senior counsel in the Labor & Employment Group of Cohen Seglias Pallas Greenhall & Furman PC. She concentrates her practice on representing and counseling employers in all aspects of employment law.