Attention Employers: NLRB postpones effective date...

The National Labor Relations Board (NLRB) has again postponed the effective date for the “Notification of Employee Rights Under the National Labor Relations Act” (Requirement). The Requirement was originally to become effective on November 14, 2011; however, the effective date was pushed back to January 31, 2012, and again to April 30, 2012 because of ongoing litigation regarding the constitutionality of the Act.

Under the Requirement, the vast majority of employers must conspicuously hang posters in the workplace to notify employees of their rights under the National Labor Relations Act (NLRA). Specifically, these posters provide employees with information about: their rights to organize or join a union, bargain collectively, or discuss wages or other benefits with co-workers, and provide examples of conduct which is illegal for employers and unions to engage in. The purpose of the Requirement is to make employees aware of the protections that may be available to them under the NLRA.

What Should an Employer Do With This Information?

            Nothing yet. If the Requirement becomes effective on April 30^th, make sure you hang an 11 x 17 copy of the poster in a place where you customarily post notices to employees and otherwise comply with the Requirement.

Even if the court strikes down the Requirement, you should review your employee handbook or employment practices to ensure compliance with the NLRA, including creating a social media policy. The NLRB has recently used the NLRA to reinstate employees in several cases in which employees were fired for posting negative comments about their jobs/employers because the posting of such comments was held to be protected activity under the NLRA. Make sure any such policy carefully defines what is and what is not allowed under the NLRA.

What Will Happen to Employers Who Don’t Hang the Poster?

           

            The NLRB does not independently audit workplaces to determine whether employers have complied with the Requirement nor does it initiate enforcement actions against non-compliant employers. However, an employee, union or other person can file an unfair labor practice (ULP) charge against an employer in violation of the Requirement. The NLRB has indicated that it may be willing to give an employer who fails to properly display the poster the benefit of the doubt (and assume that the employer was unaware of the Requirement) provided the employer immediately complies with NLRA. On the other hand, if the NLRB determines that an employer “knowingly and willfully” failed to display the poster, such failure can be considered evidence of an unlawful motive, which may lead to an enforcement action to correct an unfair labor practice. If the employer is found to have committed an unfair labor practice in violation of the NLRA, the employer may be ordered to cease and desist from such unfair labor practice and to take such affirmative action to remedy the unfair labor practice. Remedies may include, paying litigation costs, attorneys’ fees, and union expenses

The notification poster may be downloaded in 26 different languages from http://www.nlrb.gov/poster for free.