NLRB's New Notice Posting Requirement (Don't Tune Out, This Means You, Too!)

Last December, the National Labor Relations Board (“NLRB”) issued a proposed rule to require employers who are subject to the National Labor Relations Act (“NLRA” or “Act”), including labor organizations acting in their capacity as employers, to post notices informing their employees of their rights as employees under the NLRA. The final rule will be published in the Federal Register tomorrow (August 30), and the rule will take effect 75 days thereafter, on November 13.

It is a common (but incorrect) belief that the NLRA only applies to employers whose employees have joined a union. Almost all employers are subject to the NLRA’s requirements. The only exception is for a few government employers and the very few employers who do not meet jurisdictional standards. Thus, almost all employers should be paying attention to the NLRB’s new rule and preparing to advise employees of their rights under the Act as required. An employer that does not proceeds at its own peril.

The New Rule

The new rule requires all NLRA-subject employers to inform their employees of the employees’ rights under the NLRA by posting an 11-by-17-inch poster, in addition to posting an online notice on the intranet or internet site (if this is the manner in which the employer customarily communicates with employees about rules and policies).

The new rule also provides that an employer who fails to adhere to the new posting requirements will have committed an unfair labor practice as defined by 29 U.S.C. § 158(a)(1). Under that section of the Act, an employer commits an unfair labor practice by interfering with, restraining, or coercing employees in the exercise of their rights under the NLRA. Such actions can give rise to charges of unfair labor practices against the employer.

Does the NLRA Apply to Me?

If your business is not the United States or a wholly-owned government corporation, a Federal Reserve Bank, any state or political subdivision of a state, or any person subject to the Railway Labor Act, then you are an “employer” subject to the NLRA. See 29 U.S.C. § 152(2) (defining “employer”).

The NLRA prohibits employers from interfering with employees’ rights to unionize, and from discriminating against employees who have formed or joined a union. Therefore, even if none of your employees have formed or joined a union, you are still obligated to comply with the NLRA by not preventing them from doing so, from engaging in protected concerted activity, and from otherwise proceeding with their rights under the Act.

As soon as the proposed rule takes effect, you will also be required to post the required notices in your workplace, informing your employees of their rights (and your obligations) under the NLRA.

The new regulations are aimed at making it easier for workers to exercise their Section 7 rights-- that is, the employees’ rights under the NLRA to meet and form a union (and associated protections). Accordingly, employers will have to be more pro-active in their efforts to maintain a union-free workplace. Lewis and Roca has decades of experience in advising companies about labor matters. Please contact us if we can assist you in this area.


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