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Posting of Employee Union Rights in the Workplace Postponed

By Catherine Gordon, JD | May 09, 2013

Employers may soon have another workplace posting requirement to add to the numerous ones already imposed on them by various federal and state laws. As of April 30, 2012, a majority of employers are required to appropriately display a notice of employee rights under the National Labor Relations Act (NLRA).

The National Labor Relations Board’s (NLRB) requirement that employers display a notice of employee union rights in the workplace has been postponed, pending the resolution of legal issues. See the article, "Mandatory Workplace Posting of Employee Union Rights Delayed by Courts" for updated information.

The notice, required by the NLRB, the federal agency that investigates and resolves complaints under the NLRA, sets out the rights of employees as they relate to protected union activities, such as organizing and collectively bargaining with their employers as well as engaging in or refraining from other protected activities. The notice also includes information about employer and union obligations and prohibited behavior under the NLRA.

Are You Subject to the NLRB's Jurisdiction?

If you employ only your children or spouse, agricultural or domestic workers, or independent contractors, your workers are not covered by the Act and therefore you aren't subject to the posting rules. However, the Board's jurisdiction extends to most other small business owners, including non-profit organizations.

There is an exemption for smaller employers whose annual volume of business is not large enough to significantly impact interstate commerce. Generally, whether a business is subject to the NLRB's rules is based upon an annual minimum amount of $50,000 of goods or services provided by the business out-of-state or goods or services purchased by the business from out-of-state. Indirect services and goods are included. Higher minimums apply for several industries including retail businesses, home construction, day care centers, law firms and restaurants.

Both union and non-union workplaces are covered by this posting rule.

Special Rules for Federal Contractors

If you're a federal contractor with contracts worth more than $100,000, you are already required to post the Department of Labor's "Notice of Employee Rights under the National Labor Relations Act." Therefore, while you also fall under the jurisdiction of the NLRB, neither agency has the authority to usurp the other's rules. To avoid putting federal contractors in the position of having to post two similar notices, the NLRB has stated that federal contractors will satisfy their posting requirement if they post the Department of Labor's notice.

Obtaining and Properly Posting the Notice

If the posting requirement applies to your business, employers can download the notice from the NLRB's website, and have the option of printing it out and displaying it in color or black-and-white on one 11-by-17-inch sheet of paper or on two 8-by-11-inch sheets. By November 1, free copies of the notice will also be available upon request from the agency's regional offices.

Translated versions of the notice will also be made available. These versions must be posted at workplaces where 20 percent or more of the employees are not proficient in English.

The notice should be posted in a conspicuous place, where other notifications of workplace rights and employer rules and policies are posted. Be aware that if you customarily post personnel rules or policies on an Internet or intranet site, you must also provide a link to the notice from those sites in order to be in compliance.

What Happens If You Fail to Post the Notice?

The NLRB doesn't have the authority to levy fines, but failure to post the notice may be treated as an unfair labor practice under the NLRA. The agency doesn't initiate enforcement action on its own, but it does investigate allegations of unfair labor practices made by employees, unions, employers, or other persons.

The NLRB will give employers who are unknowingly in noncompliance the opportunity to voluntarily comply with the posting requirement. However, if an employer knowingly and willfully fails to post the notice, the failure can be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.

Warning. The NLRB's authority to create or enforce a rule requiring the posting of a notice in the workplace has been the subject of much controversy among employers, employees and unions. The original effective date of the rule was November 14, 2011, which was postponed twice by the NLRB in order to "allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses," according to the agency's press release.

In the meantime, the NLRB's authority regarding this rule is being challenged in court by the U.S. Chamber of Commerce, as well as by other parties. Moreover, legislation has been introduced in Congress to eliminate the notice posting requirement. Stay tuned for developments as to whether this rule survives its numerous challenges.

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