Employers Need to See the Writing on the Wall – National Labor Relations Board Publishes Final Rule on Posting Requirements
*By Patrick J. Hoban

On August 25, 2011, the National Labor Relations Board (“NLRB”) released its final rule - designated as 29 CFR 104 in the Federal Code of Regulations - requiring, for the first time ever, that employers post a notice of employee rights under the National Labor Relations Act (“NLRA”). The rule takes effect on November 14, 2011 and requires most private-sector employers to post a specific notice provided by the NLRB. The rule exempts public employers, employers subject to the Railway Labor Act (e.g., transportation industry employers), and very small employers (generally, those with an annual business volume of less than $50,000.00). Employers subject to the rule must post the required notice whether their workforce is unionized or not.

Employers must post the notice where other workplace notices are typically posted – in “conspicuous places in the workplace.” Additionally, employers who customarily communicate policies to employees electronically or via a website must also post the notice that way in addition to the physical posting in the workplace. Importantly, if 20% or more of an employer’s workforce is not “proficient in English,” the employer must post or otherwise provide a version of the notice in the language those employees speak. Beginning November 1, copies of the notice will be available from NLRB regional offices or employers may download them from the NLRB website (www.nlrb.gov) free of charge. The NLRB will also provide versions of the notice in languages other than English through its regional offices and online.

The notice identifies employee rights under the NLRA to act together to improve wages and working conditions; to form, join, and assist a union; to bargain collectively with their employer; and to refrain from any of these activities. However, the notice also tells employees how to file an unfair labor practice charge and/or contact the NLRB to initiate an investigation of a possible unfair labor practice. The rule does not impose reporting or recordkeeping requirements on employers.

The NLRB will treat any failure to post the required notice as an unfair labor practice. While, in most cases, a failure to post will result in a cease and desist order, the rule provides that it may also serve as proof of unlawful employer motive relevant to other unfair labor practice charges. The rule reserves to the NLRB the right to impose additional remedies for violations consistent with its statutory authority.

If you are a private-sector employer covered by the NLRA - whether your employees are unionized or not - you must obtain and post the required NLRB notice by November 14, 2011. If you have any questions about the rule or the NLRB, contact Pat Hoban at 216-696-4441 or pjh@zrlaw.com.

*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, appears before the National Labor Relations Board and practices in all areas of labor relations. For more information about the Final Rule or labor law, please contact Pat at 216.696.4441 or pjh@zrlaw.com.

This newsletter is not intended as a substitute for professional legal advice and its receipt does not constitute an attorney-client relationship. If you have any questions concerning any of these articles or any other employment law issues, please contact Stephen S. Zashin at 216.696.4441.
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