POSTED BY SCOTT T. SILVERMAN ON AUGUST 29, 2011
On August 25, 2011, the National Labor Relations Board (the “Board”) issued a final rule requiring employers subject to the National Labor Relations Act (the “NLRA”), which is the overwhelming majority of businesses, to post a notice in conspicuous places, informing their employees of rights under the NLRA, together with NLRB contact information and basic enforcement procedure information. The final rule is scheduled to be included in the Federal Register on August 30, 2011, taking effect 75 days later.
Therefore, Employers, both union and non-union, must begin posting the required notice on November 14, 2011. Federal contractors will be deemed to have complied with this requirement by posting the notice of employee NLRA rights that is already required by the Department of Labor under 29 CFR Part 471.
The notice to employees must be at least 11 inches by 17 inches in size. The notice must be posted in all places where notices to employees concerning personnel rules or policies are customarily posted. Copies of the notice will be available on the NLRB website and from NLRB regional offices by November 1.
Translated versions will be available in the same manner and must be posted in another language at workplaces where at least 20% of employees are not proficient in English and speak the other language. Helpful questions and answers on the Rule may be found here.
The final rule largely tracks the language of the proposal, with some changes suggested by commenters. The most significant change in the final rule is the deletion of 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. Other significant changes include: clarifications of the employee notice detailing employee rights protected by the NLRA and unlawful conduct on the part of unions; clarification of the rule’s requirements for posting notices in foreign languages; and allowing employers to post notices in black and white as well as in color.
All employers subject to the rule, who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site, will be required to post the Board’s notice on those sites, as well as physically posting the required notice. The employer must also post the notice on internet or intranet sites in a language other than English for each group of employees constituting 20 percent or more of the employer’s workforce who speak another language.
The required notice represents the latest move in response to the apparent legislative defeat of the Employee Free Choice Act. In June 2011, the Board issued another Proposed Rule that would significantly shorten the time between union petitions and elections. Because unions typically lose support during an election campaign, this rule would most likely increase the percentage of union victories. Also in June 2011, the Department of Labor issued a Proposed Rule that would expand employer and consultant reporting requirements for so-called “persuader activity.”
It is certainly time for employers to take action to implement effective union avoidance strategies. Waiting to react until a union enters the scene should no longer be an option.