Social Media Employment Law

The NLRB Grants Itself An Adjournment

Back on August 31st, I blogged about the Final Rule issued by the NLRB that required all employers subject to the National Labor Relations Act (virtually everyone) to post an 11-inch by 17-inch notice advising employees of their rights under the Act beginning on November 14, 2011.  Just yesterday, the NLRB issued a press release announcing that it has unilaterally “postponed the implementation date for its new notice-posting rule by more than two months” to January 31, 2012.    I am left to wonder whether this sudden postponement was the result of anything we said at yesterday morning’s social media briefing (he posits facetiously).

The press release advises that the compliance deadline was extended “to allow for enhanced education and outreach to employers, particularly those who operate small- and medium-sized businesses”, and suggests that it was a response to “uncertainty about which businesses fall under the Board’s jurisdiction[.]”    I am sure there is truth to that motivation, although there seems to be another equally plausible explanation for this sudden action.

On September 19th, the United States Chamber of Commerce became the third entity to file a lawsuit seeking to block implementation of the NLRB’s posting requirement.   That lawsuit, filed in South Carolina, argues, among other things, that the Final Rule exceeded the scope of the NLRB’s authority and violates employers’ First Amendment rights to free speech.   This rationale is, of course, not contained in the press release, but it has not gone unnoticed that South Carolina has not been particularly friendly to the NLRB, or that perhaps extending the deadline now eliminates the argument in all three pending cases that an injunction is necessary to address some immediate enforcement deadline.

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

It is unclear whether the new January 31, 2012 date is a “real” date at this point.   We will need to continue to monitor what the courts have to say in the pending lawsuits about whether the NLRB can proceed with the new posting requirement, and how the NLRB separately addresses the perceived need for “enhanced education and outreach.”   At a minimum, you can hold off for a few more months on attempting to find extra wall space in the employee cafeteria.   Stay tuned….

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