Employment & Labor Law

The National Labor Relations Board (NLRB) has been trying for many months now to require employers to post a notice in their workplaces informing employees of their rights under federal labor law. Due to public protests and court suits last year in response to the NLRB announcing its plan to require such a poster, the NLRB delayed the effective date for this new posting requirement from January 31, 2012 to April 30, 2012. We held off reporting this to you earlier because it was plain there might be further delays, particularly given that there are two different courts considering this issue at the same time. Due to the closeness of the April 30, 2012 deadline, we now write to let you know the following.

The NLRB posting requirement has been stalled again. A federal appeals court in Washington, D.C. issued an injunction on April 17, 2012 that puts the NLRB posting requirement on hold and bars implementation of the April 30 posting deadline until further notice. The court will hold oral argument on this issue in September 2012. This means that the posting requirement, if it ever becomes effective, is put off until at least this autumn, if not later.

On March 2, 2012, a lower court in Washington, D.C. upheld most but not all of the NLRB posting requirements (upholding the posting requirement but voiding the NLRB’s remedial measure of an unfair labor practice finding and tolling limitations periods for employers not posting the notice). It is this case that is now before the Washington, D.C. appeals court. On April 13, 2012, a different federal district court judge in South Carolina held that the NLRB lacked the authority to adopt this posting requirement. In light of these different rulings, the D.C. appeals court has put on hold the NLRB’s posting requirement. As noted above, it will be many months before a final ruling is issued. In the meantime, there is no posting requirement.

Please be aware that if this posting notice goes into effect, it will cover both employers with unionized workforces as well as those not unionized (almost all employers would be covered, excluding only those not engaged in interstate commerce, which is very few employers). If you would like to see a copy of the NLRB poster that is the subject of all this controversy, please go to the following internet link to the NLRB: https://www.nlrb.gov/poster.

You should also be aware that the NLRB posting requirement at issue is separate from the January 30, 2009 Executive Order #13496 that requires contractors (with contracts of at least $100,000) and subcontractors (with contracts of at least $10,000) with the federal government to post a notice on employee organizing rights (a copy of this poster can be found at http://www.dol.gov/olms/regs/compliance/EO13496.htm.

This subject serves as a good reminder that unions remain active in organizing employees. Few workplaces are immune from the risk of union organizing. Regardless of your personal view on the value of unions in American society, employees generally organize when they do not respect management and fear arbitrary or unreasonable employer action. Taking the steps to prevent workplace problems need not focus on unions but rather should focus on good management practices. It is best to deal with a possible problem before it gets too serious, because if you wait too long, the legal restrictions on your ability to make a change may increase such that you may have waited too long. Please let us know if you would like help in this area and preventing employment law problems in general, such as in training and/or meeting with you and/or your supervisors to help avoid these and other employee problems and claims.

Please contact Craig M. Brooks if you have any questions in this regard or on any other aspect of employment law.