03.06.2012

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Updates

A federal court in Washington, D.C., upheld the new rule adopted by the National Labor Relations Board ("NLRB") that requires virtually all private sector employers to post large official notices informing employees of their rights under the National Labor Relations Act—the federal law that protects employees who engage in union and other concerted activities.  The labor law posters are required even in workplaces where there currently are no unions.  The posting requirement applies to all employers subject to jurisdiction of the National Labor Relations Board—virtually all private sector employers except for agricultural employers, airlines and railroads.  It is scheduled to go into effect April 30, 2012.

The new NLRB notice must be posted wherever notices to employees are typically posted. .  Employers may reproduce the official poster so long as they do not change the size, content, format, font or font size.  The notice must be at least 11 x 17 inches in size and may be combined with other required employee notices.

If 20% or more of the employer's workforce is not proficient in English and speaks another language, the employer must post the notice in the language those employees speak.  If the employer has two or more such groups who speak different languages, the employer must either post the notices in each of those languages or, at the very least, post the notice in the language spoken by the largest group of employees and give the other employees a copy of the notice in a language in which the employees are proficient.

The required notice, including those translated into other languages, are available at no cost from the NLRB's regional offices. 

The notice must also be published on the employer's intranet or Internet site if the employer customarily uses such media to communicate with employees about rules and policies.  As an alternative to posting the poster on its intranet or Internet site, an employer may instead post a link to the NLRB's website that contains the poster.  The link must read:  "Employee Rights Under the National Labor Relations Act."

Federal contractors, who are already required by the Department of Labor to post a similar notice of employee rights, need not post the new NLRB notice so long as they post the Department of Labor’s notice.

Although the court decided that the NLRB had the authority to impose the poster requirement, it struck down two related provisions of the new rule.  Those stated that failure to comply with the new posting requirements would be an unfair labor practice and could also have the effect of enabling employees to file unfair labor practice charges after the normal six-month time limit has expired. 

The decision has been appealed.

Because the new posters inform employees about their right to engage in union activities, employers should consider taking steps to be sure that they are positioned to respond to any union activity that might occur.  Employers can take a number of steps to remain union free, or to minimize the chance that existing unions will expand to currently unrepresented employees, but many of them must be taken before any union activity actually begins.  Employers who have not recently (or ever) consulted with legal counsel experienced in labor law should consider doing so now.

© 2012 Perkins Coie LLP


 

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