NLRB Imposes New Posting Requirement
What Every Employer Should Know Before The Effective Date
The National Labor Relations Board (NLRB) has issued a final rule requiring most employers to post notices: advising employees of their rights to unionize; identifying specific types of protected concerted activity; and detailing several unfair labor practices that can be filed against employers. This new posting requirement is creating considerable angst for many employers because the required notice basically tells employees "don't forget about your right to unionize." More than 7,000 comments from employers, employees, unions and others were received by the NLRB and, as admitted by the Board, most objected to all or parts of the new rule.
Frequently Asked Questions
What does the new rule require?
The new rule, codified at 29 CFR § 104.202, requires most employers to post a notice explaining: (1) employees' rights under the National Labor Relations Act (NLRA) (such as their right to organize, bargain collectively, discuss wages and other terms and conditions of employment, and picket and strike); (2) what is deemed illegal employer and union activity under the NLRA; (3) basic enforcement procedures; and (4) how to contact the Board for more information.
When does the new posting requirement become effective?
The new posting requirement was initially scheduled to go into effect on November 14, 2011. However, the NLRB recently postponed the effective date to January 31, 2012.
Who must comply with the new posting requirement?
All employers under the jurisdiction of the NLRB (excluding the U.S. Postal Service) must comply with the new posting requirement. Agricultural, railroad and airline employers are excluded from the NLRB's coverage. The posting requirement applies to unionized and non-unionized employers. As an employer, if you are uncertain if you fall under the NLRB's jurisdiction, please consult your labor counsel.
What must be included in the new posting?
The new posting constitutes a formal notice advising employees of their rights under the NLRA. The NLRB will provide copies of the new posting upon request at no cost. Employers may contact their local Regional Board Office or download the new posting from the Board's website, www.nlrb.gov. Employers also may purchase a set of workplace posters from commercial suppliers.
What is the required size and form of the new posting?
The notice to employees must be at least 11 inches by 17 inches in size if on one piece of paper or 8 inches by 11 inches if on two pieces of paper taped together. Consolidated posters, such as the "5 in 1" posters, are acceptable as long as the size, content, format and font size/style remain unchanged.
Where must employers post the new notice?
The notice must be posted in conspicuous places where it can be readily seen by employees, including all places where notices to employees concerning personnel rules or policies are customarily posted. "Customarily posted" is generally interpreted to mean any (and all) locations, which all employers should maintain, where employers post required notices pursuant to other employment laws, such as the Fair Labor Standards Act or Family and Medical Leave Act, or internal personnel and workplace policies.
Is electronic posting required?
An employer also must post the notice on an intranet or internet site if the employer customarily communicates with its employees about personnel rules or policies by such means. If an employer does not regularly maintain an intranet or internet site for such purposes (i.e., does not "customarily communicate" with its workforce via the Internet in this regard), then an electronic posting is not required. The electronic notice must be posted at least as prominently as other notices to employees, and it must be an exact copy of the NLRB's poster or a link to the NLRB's website that contains a copy of the poster.
Does the notice have to be posted in a foreign language?
Where 20 percent or more of an employer's workforce is not proficient in English and speaks a language other than English, the employer must post the notice in the language employees speak. If an employer's workforce includes two or more groups constituting at least 20 percent of the workforce who speak different languages, the employer must either physically post the notice in each of those languages or, at the employer's option, post the notice in the language spoken by the largest group of employees and provide each employee in each of the other language groups a copy of the notice in the language they speak.
Employers will be required to request foreign-language notices from the Board or obtain them from the Board's website in the same manner as the English-language notice. If an employer requests from the Board a notice in a particular language in which the notice is not available, the requesting employer will not be liable for non-compliance with the rule until the notice becomes available in that language.
Do federal contractors have to comply with the new posting requirement?
The NLRB's new posting requirement applies to federal contractors, who are already required to post a similar notice pursuant to rules and regulations promulgated by the Department of Labor (DOL). If a federal contractor posts the DOL's notice, it will be regarded as complying with the NLRB's new posting requirement.
Where should construction contractors post the new notice?
The new rule does not address the appropriate location for construction job site postings. It also does not indicate whether posting the notice at a contractor's home office is sufficient or whether it must be posted at all job sites where it performs work. Presumably, the notice should be posted in the same location as all other employment law-related postings on a construction project. The rule does not address whether it is the obligation of the owner, general contractor or subcontractor to post the notice. Further guidance from the NLRB hopefully will address this and other issues unique to the construction industry.
What are the possible consequences of failing to post the new notice?
Employers that do not post the notice risk being charged with an independent unfair labor practice as a violation of the employees' right to engage in collective or organizing activity. If the employer has not posted the required notice, the NLRB also may toll the six-month statute of limitations on separate charges filed by an employee. Additionally, depending on the circumstances, an employer's failure to comply with the posting requirement may be used to infer an unlawful motive in a separate case, where the employer's motive for a personnel action is at issue.
What about an employer's right to free speech? Can an employer exercise its right under Section 8(c) of the NLRA by posting its own side notice to employees?
Yes, an employer still has the same rights under Section 8(c) of the NLRA to share its position about labor unions in a non-coercive way, including posting a side notice along with the notice required under the new rule. Employers may inform employees about their right to refuse to support a labor union, and remind employees that the company opposes having a union and will do everything permitted by the law to defeat any attempt to organize the workforce. The side notice also can state that the company hopes employees will say "no" if approached to sign a union card or petition, and that the company believes a union would not be in the employees' or the company's best interest. If an employer is considering posting a side notice to the NLRB's new notice, it must still comply with the same rules governing all employer communications under the NLRA.
Should an employer post its own side notice?
There is no one "right" course of action; rather, each employer should work with its labor counsel to determine the most effective strategy. Based on an employer's communication history, policy regarding unions, general employee and labor relations philosophy, and specific circumstances, employers may consider one of four approaches to the new posting requirement:
- Just Post the New Notice - Some employers may feel the less said the better, and the new notice may just become part of the blur of notices already posted.
- Post the New Notice and Your Own Side Notice - In addition to posting the required new notice, employers also may post their own side notice communicating their position on unions.
- Post the New Notice and Train Supervisors - Employers also could elect to train their supervisors not only on their employees' rights contained in the new notice, but on employers' rights to communicate their positions regarding unions to employees.
- Post the New Notice and Conduct Meetings with Employees - In addition to posting the new notice, posting the employer's own side notice, and training supervisors, employers could take the most aggressive approach by incorporating a communication regarding their position on unions into an employee meeting.
Note: This article was published in the September/October 2011 issue of The Employment Law Authority.