As we previously reported, last December the National Labor Relations Board (“NLRB”) issued a proposed rule requiring all employers covered by the National Labor Relations Act (“NLRA”) to post a notice detailing employees’ rights under the Act. Despite numerous objections, the NLRB published its Final Rule on August 26, 2011.
- Effective Date—The Final Rule goes into effect on November 14, 2011. The notice must be posted on that date.
- Application—The Final Rule applies to all private-sector employers subject to the National Labor Relations Act, which excludes agricultural, railroad and airline employers. All covered employers must post the notice regardless of whether their employees are currently represented by a union or not.
- Penalties—Failure to post the required notice “may be found to be an unfair labor practice and may also, in appropriate circumstances, be grounds for tolling the statute of limitations.” Although the Board does not have the authority to fine employers for violating the rule (failing to post), it can find the failure to be an independent unfair labor practice charge and the failure to post can also be used to support any other charge. As for the tolling of the statute of limitations, the Final Rule provides that “failure to post the required notice will not automatically warrant a tolling remedy” if the employer proves that the employees involved had actual or constructive knowledge of the law. Absent such proof, however, the failure to post could result in the finding of a violation well outside the normal six-month statute of limitations for unfair labor practice cases.
- Location of Posting—The Final Rule requires that the notice be posted “wherever notices to employees regarding personnel rules and policies are customarily posted and are readily seen by employees, not simply where other legally mandated notices are posted.” The Board notes, however, that “employers will be required to physically post a notice only on their own premises or at worksites where the employer has the ability to post a notice or cause a notice to be posted directed to its own employees.”
- Electronic Posting—As for electronic posting, the Final Rule provides that “all employers subject to the rule will be required to post the notice physically in their facilities; and employers who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site will be required to post the Board’s notice on those sites as well.” But, the Final Rule does not require employers to distribute the notice via email, voice mail, text messaging or related electronic communications even if they customarily communicate with their employees in that manner.
- Non-English Posters—Finally, the Final Rule provides that employers must post a notice in foreign languages where 20 percent or more of an employer’s workforce is not proficient in English. If an employer has more than one group of non-English speaking employees, “the employer must either physically 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.”
The Bottom Line for Employers
This new posting requirement applies to virtually all private sector employers. The Board probably will not conduct independent investigations of workplaces to check compliance, but agents will be checking for the posting whenever they are involved in an investigation. Although there is no monetary penalty for failing to post the notice, the consequences of not posting could be significant in an unfair labor practice case by tolling the statute of limitations or serving as evidence of anti-union animus. For this reason, employers should plan to post the notice as required by November 14. Because the notice may attract attention and generate questions from employees regarding unionization, employers are advised to be prepared for such questions and train managers how to respond.
To view the text of the required poster, click here. The poster must be at least 11 inches by 17 inches in size, but the NLRB has yet to specify type size and style.
To view an advanced copy of the Final Rule, which will be published tomorrow, click here.