Obama NLRB Requires Employers to Post Notice of "Employee Rights"
By: Frank L. Carrabba

As some of you already know, the Obama NLRB has passed a rule requiring almost all employers, including small businesses, to post a notice that advises employees of their rights under the National Labor Relations Act (NLRA). The posting must be done by January 31, 2012. Unlike employment laws that apply to companies based upon the number of individuals employed, the NLRA's jurisdiction is determined by a company's effect on interstate commerce measured by its annual volume of business. The volume of annual business is different depending on the category your business falls within. The NLRB's website, www.nlrb.gov, or your labor attorney, can help you determine if your business is covered by the NLRA.

You may obtain a copy of the poster at the NLRB's website. The notice not only informs employees of their rights under the NLRA, it also lists examples of potential unfair labor practices (ULP) that may be committed by employers and unions. Not unexpectedly, the Obama NLRB's notice lists many more employer ULP's than those that may be committed by unions.

One of the rights listed is that of concerted activity, a right under the NLRA that even some of the most experienced employers have no knowledge of. The notice informs employees that they have the right to "[t]ake action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union". Concerted activity is protected under the NLRA even though there is no union involved.

With respect to other posting requirements, it must be posted in a conspicuous place, where other notifications of workplace rights and employer rules and policies are posted. In addition, the NLRB advises that "employers should publish a link to the notice on an internal or external website if other personnel policies or workplace notices are posted there". Lastly, if at least 20% of your employees are not proficient in English and speak another language, you must post both the English version and the other language version, which you may obtain from the NLRB.

As to the consequences for failing to post the notice, the employer who does not post will be guilty of a ULP. If the employer has allegations of additional ULPs, the NLRB may extend the 6-month statute of limitations. A knowing and willful failure to post the notice may be considered evidence of unlawful motive in a ULP case involving other alleged violations of the NLRA.

Lastly, many employer associations, including the National Association of Manufacturers and the Coalition for a Democratic Workplace, have filed lawsuits against the NLRB. Hopefully, the courts will find that the NLRB did not have rulemaking authority in this area and nullify its action.

However, until that time, all employers must become educated on their responsibilities to comply with this new NLRB rule. Your supervisors and managers will be faced with questions from your employees and must be trained as to how to answer these questions without violating the NLRA. Your labor law advisor can assist you in this training.


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