NLRA Posting Notice Requirement Delayed Until January 31, 2012

On October 5, 2011, the National Labor Relations Board (“NLRB”) extended the implementation deadline for its new notice posting rule by more than two months.

In August 2011, the NLRB issued a final rule requiring employers to post a new NLRB notice. However, due to “a number of inquiries from businesses and trade organizations indicating uncertainty about which businesses fall under the NLRB’s jurisdiction,” as well as numerous lawsuits filed to challenge the new posting requirement, the NLRB has postponed the effective date of the posting requirement until January 31, 2012.

Please note that the NLRB’s decision to postpone the effective date of its new posting requirement does not impact the current requirement that certain federal contractors must post National Labor Relations Act (“NLRA”) employee rights in their workplaces under Executive Order 13496.

What Does the New Posting Requirement Involve?

The new notice focuses on informing employees of their right to organize and bargain collectively with their employers and to engage in other protected concerted activity. The new poster also provides employees with a listing of employer and union activities prohibited by the NLRA.

The poster provides employees with very little information regarding employees’ rights to NOT support unions or to NOT organize and bargain collectively. Therefore, the NLRB has stated that employers may post a supplemental poster, in addition to the NLRB’s poster, which informs employees of their rights, such as their right not to support any union activity and their right to be free from harassment if they cross picket lines. Any supplemental poster, however, must not threaten employees or make unlawful promises. It is important to note that any supplemental notice is not a substitute for the original NLRB notice, but an optional supplement to it.

Am I Required to Post the New Notice?

While it is unclear whether the new posting requirement will ever become effective given the fierce opposition concerning the poster and the number of lawsuits challenging its validity, the new posting requirement applies to all private sector employers, both union and non-union and profit and non-profit alike, within the NLRB’s jurisdiction. This includes most private sector employers, but specifically excludes agricultural, railroad, and airline employers. The NLRB also excludes from the new posting requirement very small employers that conduct a low volume of business.

In the case of retail businesses, including home construction, the NLRB’s jurisdiction covers any employer with a gross annual volume of business of $500,000 or more.

If you are a non-retail employer, the NLRB’s jurisdictional standard is based on a more complex formula based on:

1. The employer’s industry (i.e. construction industry, restaurant industry, etc.);
2. The amount of goods purchased and sold out of state; and
3. The amount of services provided or consumed out of state.

However, under this standard, the NLRB can take jurisdiction over an employer who annually consumes or provides at least $50,000 in goods/services.

How Do I Comply with the NLRB’s New Notice Requirement?

If the NLRB’s new notice requirement becomes effective as scheduled on January 31, 2012, covered employers must post the new notice in conspicuous places at all of their worksites. The new notice must be posted in the same places where other workplace rights notices and company notices concerning personnel rules or policies are customarily posted.

An employer may also post the new notice electronically, such as on the employer’s intranet, but only if the employer also posts other notices, such as employee handbooks, electronically. Please note, posting the notice electronically is in addition to, and not a substitute for, the requirement that the employer post the notice physically at jobsites.

Further, the notice must be posted in English and in another language if at least 20% of employees are not proficient in English and speak the other language.

What Action is Required Now?

No action is currently required by employers.  The new notice is not required to be posted until January 31, 2012, if the posting requirement becomes effective as scheduled. Therefore, employers should not post the new notice until that date. In the meantime, employers should keep themselves informed of NLRB actions and notifications regarding the new notice requirement.

Leech Tishman’s Employment Practice Group will keep you informed on any news related to the NLRB’s posting and is able to assist your organization in preparing a supplemental poster informing employees of their legal right not to support union activity.

Please feel free to contact Leech Tishman with any questions about the NLRA’s new posting requirement or for assistance drafting any supplemental notice to the new poster.

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