UPDATE – NLRB Proposed Notice-Posting Rule Is Upheld

You will remember my January 4, 2012 and October 13, 2011 posts about the multiple lawsuits that have been filed in court to strike down the NLRB’s proposed notice-posting rule.  That rule requires virtually every employer (unionized or not) to conspicuously post a notice to its employees of their rights under the National Labor Relations Act (“Act”), as well as information about contacts at the NLRB and enforcement provisions under the Act.    The employers and trade associations that filed the lawsuits have argued that the NLRB exceeded its authority under the Act because it has no power to enact “general rules for the workplace”, and that the NLRB violated an employer’s First Amendment right to “refrain from speaking”.

The first court to rule on these claims has disagreed.    In part.   This past Friday, the United States District Court for the District of Columbia upheld the NLRB’s right to implement its notice-posting rule.   The court found that the Act gives the NLRB “broad rulemaking authority”, and that this enactment falls within the broad authority as a rule that “may be necessary to carry out the provisions of the Act.”   

But where the court giveth, the court taketh away too, and here is where I believe the court compromised in favor of employers, albeit slightly.   While the NLRB had the power to enact the rule, the court found that it exceeded its authority by setting forth certain consequences of an employer’s failure to comply.   Thus, the court rejected the NLRB’s attempt to treat a failure to post as an “unfair labor practice” under the Act (which brings with it fairly significant monetary and injunctive remedies), and rejected the Board’s self-provided ability to toll the statute of limitations for the period in which the employer failed to post.

There will, undoubtedly, be more to come.

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

For now, the deadline for employers to comply with the NLRB’s notice-posting rule remains April 30, 2012.  The District of Columbia’s decision is subject to further appeal, and there are decisions to be had from the other pending lawsuits.  And, as in the past, this deadline is subject to further extension based on a number of factors, such as continued pending litigation.  However, until further guidance suggests a different outcome to this tennis match, your company should be prepared to comply with the notice-posting rule in the event the April 30th deadline truly becomes a real deadline.

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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