Employment Law Legal Topics

New Posting Requirement on Workers’ Right to Organize

Update: The U.S. Court of Appeals for the District of Columbia Circuit and the Fourth Circuit struck down the rule, finding that the NLRB violated employers’ free speech rights in trying to force them to display the posters or face charges of committing an unfair labor practice. On January 6, 2014, the NLRB announced that it will not seek Supreme Court review of the two Court of Appeals decisions.

In a controversial decision — indeed, there are employer suits trying to stop it — the National Labor Relations Board (NLRB) has issued a new rule, effective November 14, 2011, requiring employers to post notices telling employees of their  right to organize.

This new rule applies only to employers covered by the National Labor Relations Act, but this reaches a lot of businesses — generally all private-sector businesses that produce $50,000 worth of interstate commerce.

The new notice will advise employees of their rights to do any of the following:

  • Act together to improve wages and working conditions,
  • Form, join and assist a union,
  • Bargain collectively with their employer, and
  • Refrain from any of these activities.

The NLRB website explains that the new notices will have to be posted wherever other workplace notices are typically posted. This means that employers who customarily post notices to employees on personnel rules or policies on an internet or intranet site will also be required to post the Board’s notice on those sites.

To accommodate some of the opposition to this posting requirement, the NLRB is not requiring companies to circulate these rights via voicemail, text message, or e-mail.

There are some teeth to this new rule: Failure to post the notice is considered an “unfair labor practice” and can be reported to the NLRB by employees.

Given the possibility of an unfair labor practice charge, companies should keep records of this notice-posting, even though they are not required to do so. As labor standards expert Stefan Marculewicz told Corporate Counsel, employers should keep a record of when and where they posted the notice, such as taking a digital photo, to serve as evidence of compliance if the employer is hit with an unfair labor practice charge for failing to post.

For everything you need to know about all of the employer notice-posting requirements, turn to CEB’s Advising California Employers and Employees, chap 9. For sample forms relating to employer posting requirements, check out CEB’s new book Drafting Employment Documents for California Employers, chap 9, available at a prepublication discount until October 31, 2011. See a video interview I did on this new book.

© The Regents of the University of California, 2011. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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