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April 6, 2012After several unsuccessful legal challenges, most private sector employers will be required to post a notice advising employees of their rights under the National Labor Relations Act. The requirement is effective April 30, 2012. The notice should be posted in a conspicuous place, where other notifications of workplace rights and employer rules and policies are posted. According to the NLRB, employers should also publish a link to the notice on an internal or external website if other personnel policies or workplace notices are posted there. Both English and Spanish versions of the poster are available for download here: http://www.nlrb.gov/poster
The requirement that most private employers post a notice advising employees of their rights under the National Labor Relations Act has been postponed. The original effective date of April 30, 2012 is no longer in place due to a temporary injunction issued by a U.S. Court of Appeals. We will continue to keep you posted with developments as they arise.
The requirement that most private employers post a notice advising employees of their rights under the National Labor Relations Act (NLRA) has been vacated by the U.S. Court of Appeals for the D.C. Circuit. The Court cited Section 8(c) of the NLRA, the free speech provision which provides the following:
The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit. 29 U.S.C. 158(c).
The Court concluded that the Section 8(c) right to express views includes a right to keep silent. Since the NLRB’s poster requirement treated failure to post as an unfair practice, the Court concluded that the rule violated Section 8(c). Although the Court declined to consider whether the NLRB had authority to promulgate the rule in the first place, a concurring opinion was issued finding that that the NLRB would have lacked the authority even if it had not violated Section 8(c).
This very well could prove to be the end of NLRB’s poster requirement, although an appeal to the Supreme Court of the United States is still available.
