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Federal Court Invalidates Part of NLRB Posting Rule But Leaves Workplace Posting Requirement In Effect for April 30, 2012 Deadline

03.26.2012

​We informed you in an earlier alert of a Final Rule issued by the National Labor Relations Board (NLRB) requiring all employers under the NLRB’s jurisdiction to notify employees of their rights under the National Labor Relations Act (NLRA) with a workplace posting. 

In a subsequent alert, we gave you details about proposed legislation in Congress to repeal the NLRB posting rule and two federal lawsuits, one in Washington, D.C. and another in South Carolina, where groups representing employers are suing the NLRB to invalidate the posting rule and prevent the NLRB from enforcing it.

The NLRB postponed the effective date of its workplace posting rule twice and the current deadline for employers to comply with the workplace posting requirement of the NLRB posting rule is April 30, 2012.
Earlier this month, the federal district court in Washington, D.C. hearing one of the court challenges to the NLRB posting rule issued its final ruling.  The district court invalidated some of the sanctions against employers under the posting rule for failure to post the required workplace notice of NLRA rights.   The court voided the sanction providing that an employer’s failure to post the notice extends or “tolls” the NLRA’s six-month statute of limitations for filing an unfair labor practice charge, as well as the sanction defining any failure to post the notice as a per se unfair labor practice, reasoning that these sanctions were an impermissible expansion of the NLRA’s scope. 

But the District of Columbia federal court upheld the part of the NLRB posting rule that requires employers to post a workplace notice to employees informing them of their rights under the NLRA.  The district court held that the NLRB is granted broad rulemaking authority under the NLRA and requiring employers to disseminate information about employee rights under the NLRA is well within the NLRB’s power.  In addition, the court found the NLRB had a reasonable basis for issuing the posting rule when it concluded that many employees are unaware of their NLRA rights and in order for them to fully exercise their rights under the NLRA, they must know those rights exist. 

The district court in the District of Columbia case rejected the plaintiffs’ argument that the NLRB posting rule violates employers’ free speech rights under the First Amendment by compelling them to speak against their will, finding that the workplace notice is “government speech” not subject to the First Amendment because its content and message are mandated by the government.  In addition, the court decided that nothing prohibits the NLRB from finding “on a case-by-case basis” that an employer’s failure to post the notice constitutes an unfair labor practice.  The district court also left intact the part of the posting rule permitting the NLRB to use an employer’s failure to post the notice as evidence of unlawful motive in an unfair labor practice proceeding. 

The plaintiffs in the Washington, D.C. federal case have appealed the district court’s decision and are asking the federal appellate court to invalidate the entire NLRB posting rule, including the workplace posting requirement.  The district court denied the plaintiffs’ request for a stay of its ruling pending their appeal.

Employers Must Comply With Workplace Posting Requirement By April 30, 2012
Unless the NLRB posting rule is stayed or overturned by the appellate court in the District of Columbia case or a court ruling in the South Carolina federal case, all employers under the NLRB’s jurisdiction must comply with the workplace posting requirement by April 30, 2012.   Almost every private sector employer in the USA falls under the NLRB’s jurisdiction, regardless of whether its employees are unionized.

Employers should note that the NLRB posting rule requires them to post a translated version of the required workplace notice if 20 percent or more of the workforce communicate in a language other than English and have trouble understanding written English.

A fact sheet regarding the workplace posting requirement, along with answers to frequently asked questions and copies of the required workplace poster in English, Spanish and other languages, are available on the NLRB’s website.

This article was originally co-written by Louis B. Meyer, a Partner in Poyner Spruill's Employment Law section. Meyer was appointed by Gov. Bev Perdue as District Court Judge for the Tenth Judicial District in August of 2012.

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