December 23, 2011 update from the National Restaurant Association
On December 23, 2011, the National Labor Relations Board announced that it is pushing back the date by which employers are required to post the new notice. April 30, 2012 is the new effective date. (See NLRB's official notice below.)
The NLRB finalized its notice-posting rule over the summer with an original final rule implementation date of November 14, 2011, which was later moved to January 31, 2012. Under the rule, NLRB requires all employers subject to the National Labor Relations Act to post a notice outlining employees' rights to organize and bargain collectively and, more importantly, makes failure to post the new employee rights notice an unfair labor practice.
From the moment the regulation was proposed, the National Restaurant Association has questioned the NLRB's authority to require such a posting and to treat failure to post as an unfair labor practice. The National Restaurant Association and 31 State Restaurant Associations filed comments objecting to the proposed rule back in February 22, 2011, stating that the proposal would mandate the posting of both misleading information to employees and lead to miscommunication between workers and managers. The legal arguments were made through the comments filed by the Coalition for a Democratic Workplace, which were also incorporated by reference into the regulatory comments. Following the issuance of the Final Rule this summer, several lawsuits were filed against the NLRB to stop the implementation of this requirement. The National Restaurant Association is party to NAM v. NLRB as a member of the Coalition for a Democratic Workplace, which joined the suit on September 23rd.
A hearing was held on the lawsuit with the press reporting that the judge grilled lawyers on the NLRB Notice Rule, and strongly suggested a delay of the January 31, 2012 effective date (Nat'l Ass'n of Mfrs. v. NLRB, D.D.C., No. 11-cv-1629, motions hearing 12/19/11). Thus, the NLRB announcement on December 23.
NLRB poster lawsuit gets court hearing
December 20, 2011 update from the National Restaurant Association:
A federal district court heard arguments yesterday (Dec. 19, 2011) on one of two pending lawsuits challenging the NLRB's right to impose a new poster mandate on most private employers. Unless a court blocks the mandate, employers are required starting Jan. 31, 2012, to post an 11" x 17" notice that advises employees of their rights under the National Labor Relations Act, including their right to join a union. Today's hearing was on the lawsuit brought by the National Association of Manufacturers. The NRA is a party to the suit as one of the leading members of the Coalition for a Democratic Workplace, which also joined the suit. The judge in yesterday's hearing asked the NLRB to delay the Jan. 31 effective date and will also issue a ruling. Bloomberg 12/19 http://bloom.bg/rHGxj0
NRLB mandate reminder (December 8, 2011)
The law firm of Jackson Lewis LLP has issued a letter to their clients regarding the NLRB mandate. Click here to read the letter.
South Dakota Senator John Thune introduces legislation to block NLRB mandate on employers.
Follow this link for the story.
New posting requirement delayed to January 31, 2012
October 5, 2011 update from the law firm of Jackson Lewis LLP:
The National Labor Relations Board has announced it has postponed the effective date of its new rule mandating the workplace posting of an official Notice of Employee Rights under the National Labor Relations Act.
The rule had been scheduled to go into effect on November 14th. Now, the rule will be effective on January 31, 2012. (For more information about the new rule, scroll down).
The NLRB’s stated reason for the postponement is to “allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.” The Board cited confusion over which business fall within the jurisdiction of the statute. Unlike many other employment laws, coverage does not depend on a minimum number of employees, but the extent to which a company engages in interstate commerce. The thresholds, generally expressed in terms of gross volume of business for different industries, are very low. Almost all private sector employers are subject to the Act.
The Board states that “[n]o other changes in the rule, or in the form or content of the notice, will be made.”
The additional 11 weeks will help employers to prepare properly to comply. We recommend that employers consider an overall compliance program, to be discussed during our upcoming “Surveying the New Labor Law Landscape” series, and as described in our complimentary national webinar, “Notification of Employee Rights Under the National Labor Relations Act: Are You Prepared to Post?” (http://www.jacksonlewis.com/webinars.php).
Do not wait to the last minute to prepare for compliance. Have your plans ready before the new year and you can have a less stressful holiday season. Jackson Lewis attorneys are available to answer your questions about the new rule.
August, 2011 update from the law firm of Jackson Lewis LLP:
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The National Labor Relations Board has issued its final rule on “Notification of Employee Rights under the National Labor Relations Act.” The August 25, 2011, regulation, passed by a 3-1 vote of the Board, will have a significant impact on union-free and partially unionized employers.
The regulation requires that all employers covered by the National Labor Relations Act conspicuously post a notice, where other employment notices are customarily posted, as well as on a company “intranet or internet site if the employer customarily communicates with its employees about personnel rules or policies by such means.” The notice informs employees of their right to organize, provides contact information for the NLRB, and lists a litany of unlawful employer conduct.
Failure to post the notice may constitute an independent unfair labor practice and may be considered evidence of unlawful motive in certain proceedings before the NLRB. A failure to post also may toll the statute of limitations to file unfair labor practice charges for acts allegedly committed during the period in which an employer failed to post the notice.
Employers will be required to post the notice beginning November 14, 2011.
Proposed Rule
The NLRB issued a Notice of Proposed Rulemaking on this issue in December 2010. During the comment period that closed February 22, 2011, more than 7,000 public responses were submitted. Jackson Lewis prepared comments on behalf of several associations. Concerns raised by the management community included that:
(1) the regulations and proposed posting exceed the NLRB’s rulemaking authority;
(2) the proposed remedies were punitive and exceeded the NLRB’s remedial authority;
(3) the posting is unnecessary and imposes an unneeded burden on employers; and
(4) the suggested language of the poster did not present a balanced picture of Section 7 rights under the NLRA.
Final Rule Closely Follows Proposal
The final rule contains some modifications. For example, the final rule removes the “requirement that employers distribute the notice via email, voice mail, text messaging or related electronic communications if they customarily communicate with their employees in that manner.” Additionally, in response to comments by Jackson Lewis on behalf of one association, the Board modified the posting from proposed language that indicated that a union may not “threaten you that you will lose your job” to read “threaten or coerce you in order to gain your support for the union.” As to foreign language requirements, the final rule provides that “[w]here 20 percent or more of an employer’s workforce is not proficient in English and speaks a language other than English, the employer must provide notice…in the language the employees speak. If an employer’s workforce includes two or more groups constituting at least 20 percent of the workforce who speak different languages, the employer must provide the notice in each such language.” The NLRB also has offered to translate the notice to employees who “do not understand or speak English well.” Nevertheless, the final rule closely follows the Board’s proposal.
Next Steps for Employers
Employers should prepare prior to the November 14, 2011, implementation date. For example, employers should train supervisors now regarding the meaning of the notice, the company’s position on unionization, the significance of authorization cards, and how and when to communicate lawfully about these subjects.
Employers’ labor relations programs should be reviewed. This should include performing a bargaining unit analysis, and the pros/cons of posting their own notice (or otherwise communicating with employees) to help their staff understand the Board’s new posting and the employer’s position on the issue. Jackson Lewis attorneys are available to advise your business in connection with this rule as well as all other aspects of labor and employment law and related issues.
Click the links below to view the documents:
Final Rule
Fact sheet
NLRB announcement
September 7, 2011 update from National Restaurant Association:
NLRB POSTER. Starting Nov. 14, almost all employers will be required to hang an 11" x 17" federal poster advising employees of their rights under the National Labor Relations Act to form unions. NLRB published the controversial final rule Aug. 15, overriding the concerns and comments of the NRA and hundreds of other business groups. NLRB says it will have the poster ready by Nov. 1. NLRB final rule
http://1.usa.gov/oyZ9qj , NLRB Q&A
http://1.usa.gov/nqEtyZ , NRA News blog
http://bit.ly/nAznsJ