On April 17, 2012, the United States Court of Appeals for the District of Columbia issued an order temporarily enjoining the National Labor Relations Board (the “Board”) from requiring employers under the Board’s jurisdiction to post a notice of employee rights.  The Board had previously set an April 30, 2012 deadline for the posting requirement. The Court has before it an appeal from the federal district court for the District of Columbia, which ruled that the NLRB requirement was lawful.  Citing “uncertainty” about enforcement of the rule, the Court determined that it should preserve the status quo while considering the merits of the issue on appeal.  In its ruling, the Court noted the conflicting decisions of the lower court and the federal district court in South Carolina.

NLRB Employee Rights Notice Posting Announcement

In response to the action, the Board announced that its regional offices will not implement the disputed rule pending resolution of the issues before the court.  Rather, the agency will defend the rule in the D.C. Circuit and may appeal the adverse ruling from the federal court in South Carolina.

The result of these decisions is that employers need not post the NLRB employee rights poster on April 30, 2012.  Rather, employers may delay posting until the courts decide the various appeals.  MBJ will monitor the situation and provide updates as necessary.  In the meantime, please contact your MBJ attorney with any questions concerning this or any labor and employment law matter.

The National Labor Relations Board has ordered covered, private sector employers to post a notice of employee rights under the National Labor Relations Act. The final rule takes effect (after several postponements) on April 30, 2012.

Generally, covered employers are those private sector employers engaged in interstate commerce who meet jurisdictional standards set by the NLRB. The general retail standard includes businesses with an annual gross volume of business of $500,000 or more. The rule applies to both union and non-union workplaces where these jurisdictional standards are met.

In addition to posting a physical copy of the notice, employers must post the notice on an internet or intranet site if personnel rules and policies are customarily posted on those sites. Employers are not required to distribute the notice by electronic means. Also, there are no record keeping or reporting duties set forth by the final rule.

Translated versions of the notice must be posted at workplaces when at least 20% of employees are not proficient in English. If an employer’s work force includes two or more groups totaling at least 20% of employees who are not proficient in English, then the employer must either post the notice in both languages or post the notice in the language spoken by the greater number of employees, while providing copies in the second language to employees who are not proficient in English.

Copies of the English notice are available at this link: NLRB 8 1/2″ X 11″ 2 Pages Rights Posting Spanish: Spanish NLRB 6 1/2″ X 11″ 2 Pages Rights Posting Other ;languages are avialable at: NLRB.org

The final rule indicates that employers who fail to post the required notice may be found to have violated Section 8(a)(l ) of the National Labor Relations Act. The typical remedy for such a violation is to post a notice for 60 days advising employees of the unfair labor practice. Additionally, the failure to post the notice may result in extending or tolling the Acts six (6) month statute of limitations for fiing an unfair labor practice charge.

Finally, a willful or knowing failure to post may be considered evidence of unlawful motivation in an unfair labor practice case involving other alleged violations of the Act.

Two (2) legal challenges have been filed to the NLRB order. As a result of one legal challenge, the United States District Court for the District of Columbia upheld the Board’s authority to require employers covered by the statute to post a notice of employee rights.

An appeal has been filed of the District Court’s ruling. Additionally, a separate case brought by the United States Chamber of Commerce remains pending in South Carolina. While these two (2) cases remain pending and could result in changes to the posting requirement, franchisees need to remain ready to post the notice of employee rights on April 30,2012.

DDIFO will keep you informed of developments as the April 30 deadline approaches.

Nathan L. Kaitz, an attorney with Morgan, Brown & Joy, prepared this article. He can be reached at (617) 623-6666 or at nkaitz@morganbrown.com with any questions you may have.