The National Labor Relations Board ("NLRB") recently issued a new rule (See Notification of Employee Rights Under the National Labor Relations Act, 76 Fed. Reg. 54,006 (Aug. 30, 2011) (to be codified at 29 C.F.R. §§ 104.201et seq.)) requiring most private sector employers to post a notice informing employees of their rights under the National Labor Relations Act ("NLRA"). The rule becomes effective November 14, 2011.
This new rule mandates particular language to be included in this required notice, including information about employees' rights to form, join, or assist a union; to bargain collectively; to join in other concerted activities; and to refrain from such activities. Employers must display this notice in the form of an 11-by-17-inch poster in all places where other personnel notices are typically posted. If the Employer has a system for communicating with employees about personnel rules or policies on intranet or internet sites this notice must also be included on those sites. The particular content of the notice is mandated by the rule. If 20 percent or more of an employer's workforce is not proficient in English, the notice must be posted in their foreign language. Copies of the official notice will be available from NLRB regional offices and from the NLRB website at www.nlrb.gov.
But don't assume that because your workforce is not unionized that this new requirement does not apply. The rule applies to all employers subject to the NLRA. Who is subject to the NLRA? Odds are if you have a business with employees and have any volume of business, the NLRA governs your relationship with your employees. The NLRA covers most private sector employers that engage in interstate commerce above certain minimal financial levels. In certain specific instances, the NLRB contains revenue-based jurisdictional limits that are different for particular business types or industries. For example, if your in the business of running an office building or shopping center, the threshold limit is $100,000 in revenue; for law firms, the threshold is $250,000; for private schools, the threshold is $1 million (which is the highest revenue limit listed in the jurisdictional standards). If your business is not specifically listed, the default threshold is $50,000. (There are certain categories of business that are subject to the NLRA regardless of revenue levels. These include many financial based businesses, such as financial information organizations, accounting firms, and stock brokerage firms). Thus, your business may be covered, and you never knew it.
Note: If you are a federal contractor or subcontractor, and already follow regulations applicable to your industry to post notices informing employees of their rights under the NLRA, you are already in compliance with the new rule.
This new posting will stir up a great deal of controversy, particularly for smaller businesses that have never dreamed of dealing with the implications of NLRA rights in non-unionized settings. The posting will specifically inform employees that they have the right to discuss their wages, benefits and other terms and conditions of employment with co-workers and the right to take action with one or more co-workers to improve working conditions by, among other means, raising work-related complaints. It will also inform employees that an employer cannot legally terminate, discipline or take other adverse action against employees who exercise these rights.
An Employer who fails to follow this new requirement could be charged with interfering with employee rights under the NLRA. Even if the employee has done nothing else to violate the NLRA, this could be the basis for an unfair labor practice charge. Usually the penalty for failure to follow NLRB posting requirements is minor, as long as the missing poster is the only violation. However, considering the new found slant in favor of unionization by the Obama Administration's appointees to the NLRB, such a violation will certainly result in a further investigation, and the potential for finding allegations of other unfair labor practices. This could be significant, as the violation of the posting rule could toll the six-month statute of limitations that ordinarily applies to charges of NLRA violations. Also, because Employers cannot retaliate against any employee for filing a charge with the NLRB or offering evidence concerning an alleged violation of the Act, an Employer's violation of this new requirement could be cleverly used by employees who anticipate disciplinary action or termination to gain protected status under the Act. This is because, once an employee files a charge, the employee could claim that any adverse action that followed was illegal retaliation.
Therefore, Employers with non-unionized workplaces should be careful to follow this new regulation. The NLRB has been especially active in recent months in bringing unfair labor practice enforcement actions against non-unionized Employers for disciplining employees or adopting policies which purport to limit what the NLRA defines as "concerted activity." For example, the NLRB's Office of General Counsel recently published notice of the Board's rulings on several cases involving social websites, where Management's social media policies or disciplinary actions against what employees were posting on Facebook or Twitter were deemed improper. The Board came to some shocking conclusions regarding how commentary by a group of employees on another employee's Facebook site transformed into "concerted activity," and were protected activities under the NLRA. (I plan to comment on this issue in my next Blog entry).
This new poster requirement adds to all the current, existing notice requirements Employers must follow. For example, the Fair Labor Standards Act, the Family and Medical Leave Act, federal anti-discrimination statutes, and federal workplace safety statutes all have their own mandatory posting requirements. Besides federal posting requirements, Employers are subject to state and local requirements, such as the Illinois minimum wage. Employers should use this new requirement to make sure they are also posting all the employee notices required by law.
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