Yesterday, the NLRB issued a Final Rule that requires all employers subject to the National Labor Relations Act (“Act”) to post an 11-inch by 17-inch notice advising employees of their rights under the Act beginning on November 14, 2011. That notice will include statements advising employees, among other things, of their right to engage in protected “concerted activity”. It also will set forth examples of potentially unlawful conduct by employers (and unions where applicable), and advise employees how to contact the NLRB with questions or complaints. A FAQ sheet can be accessed here.
In its preamble to the Final Rule, the NLRB expressed its rationale for this new requirement clearly:
“The Board believes that many employees protected by the [Act] are unaware of their rights under the statute and that the rule will increase knowledge of the [Act] among employees, in order to better enable the exercise of rights under the statute. A beneficial side effect may well be the promotion of statutory compliance with employers and unions.”
In light of the November 14th effective date, the NLRB will make the required notice/poster available on its website by November 1st. Employers will be required to post the notice where other workplace notices are customarily posted. Also, if you typically post notices to employees regarding personnel policies on the Internet or an Intranet portal, you must post this new notice on those sites as well. Unlike the first proposed draft of the Final Rule, however, you are not required to affirmatively distribute the notice by e-mail, Twitter, or other social media or electronic means.
The workplace is much smarter than it was even a few years ago, and has greater access to legal representation and information through the Internet than ever before. The NLRB’s new rule requiring employers to further affirmatively educate employees appears to be a continuation of its pro-employee initiatives.
Employer Take Away: What should you as an employer take away from this development?
Obviously, you should make sure that your company complies with this new notice and posting requirement by November 14, 2011. Remember that the Act (and the NLRB’s jurisdiction) applies to both union and non-union businesses. From a social media standpoint, the NLRB is effectively telling employers that they must affirmatively tell employees that they can engage in “concerted activity,” despite the fact that such term is more of a “term of art” than many other rights that are listed in other company postings. And as we have discussed in prior blog entries, there continues to be no bright-line test for when an employee’s social media activity legitimately constitutes protected activity.
Accordingly, your company should be more vigilant about making sure your social media policies are lawfully and appropriately drafted, and that any employment-related decisions based on social media activity are carefully considered at the outset and do not violate the law.