A new National Labor Relations Board (“NLRB”) Final Rule requires most private-sector employers to post a notice describing certain employee rights such as the “right to organize” under the National Labor Relations Act (“NLRA”). While the Final Rule is not balanced between union and employer interests, the Final Rule does address some concerns that many employers had with an earlier proposed version of the rule. For example, one significant change in the Final Rule is the deletion of the requirement that employers distribute the notice via email, voice mail, text messaging, or related electronic communications if they customarily communicate with their employees in that manner. Nevertheless, employers must still post the notice where other workplace notices are typically posted. Moreover, employers who post notices to employees regarding personnel rules or policies on an Internet or intranet site will also be required to post the NLRB notice on their site. However, such postings to an Internet or intranet site will be the only electronic postings required under the Final Rule.

In addition, employers had urged the NLRB to avoid showing bias toward union organizing and add language alerting employees that they also have the right to refrain from engaging in union activity. Employers observed that a more neutral notice would include both the right to engage and not engage in union activity at the beginning of the document, rather than wait to first mention the right to refrain in the affirmative rights section of the notice. As a result, the Final Rule provides that the introduction should include both the right to engage in union and other concerted activity and the right to refrain from doing so. More specifically, the first sentence in the introduction to the notice will state: “The NLRA guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity or to refrain from engaging in any of the above activity.”

The NLRB believes that the new notice of employee rights is necessary even though they have not conducted any study to determine the extent of employees’ knowledge of NLRA rights.  With little elaboration, the NLRB has stated that such a study is unnecessary. The NLRB believes that many employees protected by the NLRA are unaware of their rights under the statute and that the rule will increase knowledge of the NLRA among employees. The NLRB asserts (without citation to any source) that around 10 percent of employees are unaware of the rights explained in the notice. 

Failure to post the required notices can have significant consequences for employers. For example, if the NLRB finds that the employer has failed to post the required employee notices as alleged, the employer will be ordered to cease and desist from the unlawful conduct and post the required employee notice, as well as a remedial notice. In some instances additional remedies may be appropriately invoked in keeping with the Board’s remedial authority.  Failure to post the employee notice may also affect NLRB proceedings. For example, the statute of limitation for an employee to file an unfair labor practice charge may be tolled and, as a result of an employer’s failure to post the required notice, the NLRB may find it appropriate to excuse the employee from the requirement that charges be filed within six months after the occurrence of the allegedly unlawful conduct. Finally, the NLRB may consider a knowing and willful refusal to comply with the requirement to post the employee notice as evidence of unlawful motive in an unlawful labor practice proceeding in which motive is an issue.

The Final Rule is set forth in Chapter 1, Part 104 of Volume 29 of the Code of Federal Regulations (“CFR”) (available here: http://www.ofr.gov/OFRUpload/OFRData/2011-21724_PI.pdf).  Subpart A of the rule sets out definitions; prescribes the size, form, and content of the employee notice; and lists the categories of employers that are not covered by the rule.  The notice itself is published in the Appendix of Subpart A. Subpart B sets out standards and procedures related to allegations of noncompliance and enforcement of the rule.

Action Steps

1. The poster will need to be posted by November 14, 2011, when the new requirements take effect.
2. Prior to November, employers who wish to maintain a direct relationship with their employees should train their supervisors on the NLRA and effective employee relations.
3. Likewise, these same employers should create and implement effective communication plans and policies.

Employers who undertake action steps 2 or 3 should consult with legal counsel.