Employment Law Blog

New Requirements for Posting a Notice Advising Employees of their Rights under the National Labor Relations Act Rights Take Effect on January 31, 2012

For the first time, employers subject to the National Labor Relations Act (“NLRA”) will be required to post notice-advising employees of their rights under the NLRA. Most public sector employers, including non-profits, are subject to the NLRA, not just those with union workforces. Small businesses may be exempt if they have only slight effect on interstate commerce, but this exception does not apply to as many employers as one might think, and small business owners should not assume that they are exempt. 

The NLRA generally applies to all non-retail employers with an annual inflow (loosely defined as goods or services purchased directly or indirectly from out-of-state) or outflow (goods or services sold directly or indirectly out-of-state) of more than $50,000. Retail employers with a gross annual volume of business of more than $500,000 are also included. Other thresholds may apply if a business fits within a special category (for example: Hospitals, $250,000; law firms, $250,000; and Nursing Homes, $100,000).

Employers subject to the NLRA must post said notice in a conspicuous place where other notifications of workplace rights and employer rules and policies are posted, for example, where an employer posts its other notices related to:  The Occupational Safety and Health Act (OSHA); The Uniform Services Employment and Reemployment Rights Act (USERRA); The Fair Labor Standards Act (FLSA) Notice; The Family and Medical Leave Act (FMLA) Notice, or other applicable Federal and State laws and regulations.  If an employer’s workplace policies and notices are typically posted on an intranet site, a link to the NLRA notice should be posted there as well. In addition, if 20% of employees are not proficient in English, an employer may also be required to post the appropriate translation.

The requisite notices can be found here:

https://www.nlrb.gov/news-outreach/brochures

This posting requirement was originally set to take effect next month. Though I personally hope the postponement reflects how hard the National Labor Relations Board (“NLRB”), which enforces compliance with the NLRA, is working to end the NBA lockout, it is more likely due to the substantial feedback the NLRB has received in response to its new notice regulations. [As an aside, for an overview and interesting commentary regarding the NLRB’s role in the NBA lockout, I recommend the following article by Lester Munson, Esq., senior writer for ESPN:  http://espn.go.com/espn/commentary/story/_/page/munson-111021/nlrb-complaint-nba-players-best-chance-end-lockout-now. 

Though the NLRB does not plan to levy fines, failure to post the required notice may toll the six-month statute of limitations for filing a charge involving unfair labor practice (which may include, for example, charges that an employer infringed on an employee’s right to discuss workplace grievances or benefits with his or her co-workers), or may otherwise impact an employer’s ability to defend itself against such claims. In fact, failure to post the NLRA notice might be used as evidence to support an inference of an employer’s unlawful motive in implementing an unfair labor practice.   

If you have any questions regarding whether your business must post this new NLRA notice, or other similar notices, you may wish to contact an attorney who can assess the specifics of your business. Not only is it important that your company post the requisite signs, but it is also important that you understand how the related statutes and regulations apply to your business, and that your employee policies and procedures reflect the same.

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This article does not constitute legal advice.