NLRB Posting Rule: Neck and Neck at the Finish Line

April is typically known for its tax deadline (extended until tomorrow).   In employment law circles, it has also been known this year for the April 30, 2012 deadline by which virtually all employers are required to post a notice informing employees about their rights under the National Labor Relations Act (the “Act”).   You will remember my March 5, 2012 post, which followed my January 4, 2012 post, which followed my October 13, 2011 post, on this horse race that is the dueling litigation over whether the NLRB had the authority in the first place to promulgate its notice posting rule.

My March 5th post told you that the United States District Court for the District of Columbia sided with the NLRB, upholding the agency’s right to implement that rule.    A request to temporarily enjoin enforcement was rejected, paving the way for the April 30th deadline to remain.   But wait – this past Friday the 13th added a little mud to the track, as the United States District Court for the District of South Carolina reached the completely opposite decision.

Right up front, you could tell where the South Carolina court was heading in its decision on Friday.    It first provided general background about the history of the Board, noting that:

“For over seventy-five years, the NLRB has been nearly unique among federal agencies in not requiring employers to post a general notice of employee rights in the workplace.  On December 22, 2010, the Board changed course and issued a proposed rule[.]”

Unlike other federal agencies, the court noted, the NLRB has traditionally served as “a reactive agency”, whose processes “are begun only when requested.”    Noting that the Act itself “does not require employers to post general notices of employee rights”, the South Carolina court ultimately ruled that “the plain language and structure of the Act compel a finding that the Board lacks authority . . . to promulgate the rule.”

Employer Take Away:   What should you as an employer take away from this development?   

It is worth repeating that this may or may not be anything more than the undercard of a larger racing day.   On the one hand, there are those who believe that, in this day and age of social media and the Internet, employees can get all information elsewhere and are otherwise numb to legal postings in the office, and so this whole issue is much ado about nothing.    On the other hand, this issue may still be a referendum on expanding government intrusion into the private workplace.   Either way, it is certainly still worth taking out your binoculars for the stretch run.

The plaintiffs in the District of Columbia case have already appealed that decision, and the NLRB will more than likely appeal this South Carolina one.   Both can be reversed, one or the other could be reversed, and perhaps the U.S. Supreme Court will place a horse in this race.   Even more unclear is what happens two weeks from today.   Will Friday’s decision apply only to employers in South Carolina?   Will the NLRB voluntarily suspend enforcement for all employers?  

Keep your eyes and ears open, as further developments will occur.   You may still want to keep a space available on your cafeteria wall, but perhaps you can continue to hang the employee-of-the-month plaque in that space for a few more days.

About The Author

Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.

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About Social Media Employment Law Blog
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
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