On Friday, March 2, 2012, a federal judge in Washington, D.C. upheld the National Labor Relations Board requirement that nearly all employers must post a notice of employee rights under the National Labor Relations Act. After two self-imposed delays, the judge’s decision paves the way for the requirement to go into effect on April 30, 2012.
The judge did strike down two pieces of the NLRB’s enforcement scheme, but the judge took care to limit the practical effect of that determination.
Posting Requirement
The court first upheld the NLRB’s posting requirement. The court found the Board had not overstepped its congressional authority by mandating the notice and that the notice-posting requirement did not violate employers’ First Amendment rights.
Enforcement of the Posting Requirement
The NLRB’s new rule set forth three consequences for an employer’s failure to post the mandated notice: (1) it may constitute an independent unfair labor practice; (2) it may be grounds for tolling the 6-month statute of limitations; and (3) the Board may consider it to be evidence of unlawful motive in a case in which motive is an issue.
The court struck down two of the three enforcement mechanisms, noting that the Board exceeded its authority from Congress when it labeled the failure to post an unfair labor practice and that such failure could toll the 6-month statute of limitations. The court did not strike down the union animus provision of the rule. According to the court, “unlike the unfair labor practice and tolling provisions, the animus provision neither creates an unfair presumption nor relieves the Board of making a case by case determination.”
Limited Help to Employers
Despite specifically striking down the tolling provision and the unfair labor practice provision, the court was careful to limit the practical effect of its ruling. Specifically, the court held only that the Board cannot make “a blanket advance determination” that the failure to post will always constitute an unfair labor practice or toll the statute of limitations. Thus, according to the court, “the Board could still find failure to post to be evidence of an unfair labor or justification for equitable tolling in individual cases.”
Bottom Line
Because the court upheld the posting requirement, employers should assume they will be required to comply with the posting rule and should post the notice on or before April 30, 2012. The NLRB has published its Employee Rights Poster on its website (a printer-friendly version is available here).
Given the limited practical effect of the court’s ruling as to the NLRB’s enforcement of the rule, employers should carefully consider the risks that could come from failing to post the notice.
Stay tuned for further developments.