Labor & Employment Law Articles

New NLRB Posting Requirements 

The National Labor Relations Board (“NLRB”) has recently announced a new rule requiring most private employers to display a poster that notifies employees of their right to form and join a union.  This includes private employers with and without union workforces, as well as non-profit organizations.  The poster, which may be downloaded from www.nlrb.gov/poster, is similar to the poster that federal government contractors are already required to display.

            The poster should be displayed in conspicuous places where it will be easily viewed by employees.  Employers with remote worksites should display the poster at those sites.  Wherever the poster is displayed, reasonable steps should be taken to ensure it is not altered, defaced, or covered by any other material, or otherwise rendered unreadable.

            The poster must be in English.  If at least twenty percent (20%) of employees either use English as a second language or are not proficient in English, a poster must be displayed in that language in addition to the English poster.  If a workforce includes two or more groups, each constituting at least twenty percent (20%) of the workforce and who speak different languages, the Board only requires the employer to post in the language spoken by the larger group.  The employer may then either post an additional poster(s) in the language spoken by the other group(s), or distribute copies of the poster to those employees in their language(s).  The NLRB will provide posters in additional languages on its website.  If a translation of the appropriate language is unavailable, the employer will not be liable for non-compliance. 

            In addition to the physical posting discussed above, if company rules and/or policies are typically distributed on an internet or intranet site, then the poster should also be on those internet or intranet sites in all the required languages.

            The new rule also affects the statute of limitations for when an unfair labor practice charge must be filed.  Pursuant to the National Labor Relations Act (“NLRA”), once an individual has actual or constructive knowledge of an unfair labor practice, that individual has six (6) months to file a charge with the NLRB.  After the new rule takes effect, this six (6) month period will not begin to run until the required notice has been posted.  While this new tolling provision will always apply to non-union workforces, there may be circumstances where this new provision will also apply to union members or employees represented by a union.

            Additionally, the NLRB may find that an employer that fails or refuses to post the required notice violates § 8(a)(1) of the NLRA.  However, if an unfair labor practice charge is filed alleging failure to post the notice, “the Regional Director will make reasonable efforts to persuade the respondent employer to post the . . . notice expeditiously,” and that “[i]f the employer does so, the Board expects that there will rarely be a need for further administrative proceedings.”

            The NLRB also can consider an employer’s knowing and willful failure to post the required notice as evidence of unlawful motive in an unfair labor practice proceeding.

            This rule will take effect on January 31, 2012.  Please feel free to call us if you have any questions.

***UPDATE: The National Labor Relations Board has again postponed the date when employers must display this poster. The rule will now take effect on April 30, 2012.

***UPDATE: On April 17, 2012, the United States Court of Appeals for the District of Columbia temporarily blocked the National Labor Relations Board from requiring employers to display this poster by April 30, 2012.