Board Requires Employers to Post Employee Rights

On December 22, 2010, a proposed rule by the National Labor Relations Board (Board) was published in the Federal Register. The proposed rule requires all employers under the Board’s jurisdiction to post a notice informing employees of their rights under the National Labor Relations Act (NLRA). Affected employers will be required to post an 11-by-17 inch poster explaining the employees’ rights under the NLRA and, in addition, will be required to distribute a notice electronically if the employer customarily uses electronic means to communicate with its employees. The Board believes the new posting requirement will not only inform employees of their rights, but it will also help deter employers from engaging in unfair labor practices. 

There are three (3) ways the new posting provisions could adversely affect employers if they fail to fulfill the new requirements. First, if an employer fails to post the required notice, the Board may impose a sanction for an unfair labor practice under Section 8(a)(1) of the NLRA. Second, failing to post the required notice will toll the six-month statute of limitations for filing an unfair labor practice charge under Section 10(b) of the NLRA, unless the employee had actual or constructive notice that the employer’s actions were unlawful. Finally, if the employer knew of the posting requirement but failed to comply, the Board will view its refusal as evidence of unlawful motive. 

The new posting requirement will apply to all employers covered by the NLRA, meaning the new posting requirement will not apply to federal agencies, state or political subdivisions, labor organizations not acting in the capacity of an employer, and entities not currently under the Board’s jurisdictional standards. However, a large number of small businesses in the United States will be affected. The Board estimates it will take businesses approximately two (2) hours at a total cost of approximately $62.04 to become compliant. This includes the time and effort dedicated to learning about the new requirements, obtaining and posting the notices, and distributing an electronic notice if applicable. 

However, the newest member of the Board, Brian Hayes, disagrees with the Board’s decision and ability to impose the proposed action. When drafting the new posting requirements, the Board adopted language from the Department of Labor (DOL), which requires all federal contractors and subcontractors to post a notice of employee rights. Hayes argues that when the DOL established this posting requirement for employees’ rights, it was acting pursuant to an executive order signed by President Obama. In addition, the Board contends Section 6 of the NLRA gives the Board the authority to propose this regulation, but Hayes argues the lack of any express language in the NLRA allowing a posting requirement is a strong indication the Board does not have the authority to propose such an obligation. Nevertheless, public comment has been invited on the proposed rule and whether Section 6 of the NLRA gives the Board the authority to implement the new posting requirement.