NLRB Imposes New Posting Requirement Affecting Most Employers
Starting November 14, 2011, employers have yet another poster to post along with other employee notices. The new poster informs employees of their rights under the National Labor Relations Act (NLRA) and is mandated by a final rule published by the National Labor Relations Board (NLRB) in the August 30 Federal Register. The rule establishes the size, form, and content of the notice, and remedies for noncompliance.
Who Must Post the Notice
The rule applies to nearly every private-sector employer. It excludes businesses that the NLRB generally does not assert jurisdiction over, which are those that have only the smallest impact on interstate commerce. For retail businesses and home builders, that usually means those with a gross annual volume of less than $500,000. For other employers, including commercial construction contractors, the threshold is $50,000. The rule applies regardless of whether the employer’s workforce is unionized or not.
What’s in the Notice
The notice includes information about employees’ rights under the NLRA (such as the right to join a union, bargain collectively, discuss wages and benefits, and to strike and picket), examples of unlawful employer and union conduct, and information on how to contact the NLRB. The content is very similar to that of the notice required by most federal contractors pursuant to federal contract clauses mandated by a Department of Labor (DOL) regulation issued in May 2010. Employers in compliance with the DOL requirement will be deemed to be in compliance with the NLRB requirement. Accordingly, federal contractors need only post the DOL notice – not both the DOL notice and the NLRB notice – at jobsites covered by the DOL rule.
How the Notice Must be Posted
The rule requires employers to physically post the notice “in conspicuous places where they are readily seen by employees, including all places where notices to employees concerning personnel rules or policies are customarily posted.” The poster must be at least 11 inches by 17 inches in size and must be in the format, type size, and style prescribed by the NLRB. In addition to physical posting, employers must also electronically post the notice on an intranet or internet site if the employer customarily communicates with employees about personnel rules and policies through such sites. The electronic posting requirement will be met if the employer displays “no less prominently than other notices to employees” either an exact copy of the poster, downloaded from the NLRB’s website, or a link, reading ‘‘Employee Rights under the National Labor Relations Act,’’ to the NLRB’s website that contains the poster.
In workplaces where 20 percent or more of the employer's workforce is not proficient in English but speak the same foreign language, the employer must post the notice in the language employees speak. If the workforce includes two or more groups totaling at least 20 percent of the workforce who speak different languages, the employer must either post the notice in each of those languages or, at the employer's option, post the notice in the language spoken by the largest group of employees and provide each employee in each of the other language groups a copy of the notice in the appropriate language. If an employer requests from the Board a notice in a language that is not available, the employer will not be liable for non-compliance until the notice becomes available in that language.
How to Get the Poster
According to an NLRB fact sheet, the poster will be available on the Board’s website by November 1. To make printing easier, the website will offer two format options: a one-page, 11-by-17-inch version and a two-page 8½-by-11-inch version that must be printed in landscape format and taped together to form the 11-by-17-inch poster. The NLRB will also provide printed copies of the poster upon request, at no charge.
What Are the Penalties for Failure to Post?
An employer that fails to post the notice may be found to have committed an unfair labor practice. Under some circumstances, the NLRB will toll the statute of limitation for an employee’s filing of an unfair labor practice charge. If the NLRB finds that the failure to post was “knowing and willful,” then it will deem the employer to have an unlawful motive in an unfair labor practice case. The NLRB expects, however, that few violations will be found for failures to post the notice. It stated in the preamble to the rule that it “anticipates that most employers that fail to post the notice will do so because they are unaware of the rule, and that when they learn about the rule, they will post the notice without the need for formal administrative action or litigation.” If a charge is filed alleging failure to post, the rule provides that the NLRB regional director “will make reasonable efforts to persuade” the employer to promptly post the notice. If the employer does so, “the Board expects that there will rarely be a need for further administrative proceedings.'' The Board noted that it lacks the statutory authority to impose fines.
How the Final Rule Differs from the Proposed Rule
The NLRB received over 7,000 public comments on the proposed rule issued last December, including AGC-joined coalition comments raising various concerns. The Board made only a few changes in the final rule, but those changes did include some improvements. For example, the final rule drops proposed requirements to provide the notice by e-mail, text message, and voice mail, and to post the physical notice in color. The final rule also adds language to the notice clarifying that employees not only have the right to engage in statutorily protected activity but to refrain from engaging in such activity as well.
For more information, contact Denise Gold, Associate General Counsel, at (703) 837-5326 or email@example.com.
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