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New Notice of Employee Rights Required by NLRB

On August 25, 2011, the National Labor Relations Board (NLRB) issued a new rule (entitled "Notification of Employee Rights under the National Labor Relations Act") that will require the vast majority of employers to post notices in their workplaces advising employees of their rights to organize unions, engage in protected concerted activity, collectively bargain and strike under the National Labor Relations Act (NLRA).

The requirements of and rationale for the new rule are set forth in 194 pages of regulations. Although the NLRA has been in effect for 76 years, the Board believes that employees need to be made more familiar with their rights under that law due to "the comparatively small percentage of private sector employees who are represented by unions." It is apparently the Obama Board's intention to increase the percentage of unionized workers in the private sector (currently estimated at about 6.9%, down from a 1954 peak of 35%) by requiring employers to notify workers more about their rights to organize. The NLRB anticipates that the new rule "will increase knowledge of the NLRA among employees, in order to better enable the exercise of rights under the statute".

Under the new rule, which will take effect on November 1, 2011, the new notice will be 11 inches by 17 inches and "in such colors and type size and style as the Board shall prescribe". The NLRB will design the new notice and make it available by November 1, 2011. Employers must post the new notice by November 14. It is estimated that approximately six (6) million employers will need to post the new notice, the vast majority of which have never engaged in any unfair labor practices.

The new notice must be posted inconspicuous places readily seen by employees, including all places where notices to employees are customarily posted". Any employer that "customarily communicates" via intranet or internet with its employees as to "personnel rules or policies" must display an exact copy of the Notice on such site(s), or a link to the NLRB's web site which is titled "Employee Rights under the National Labor Relations Act."

The new notice will inform employees of legal protections they have under the NLRA to voice complaints about terms and conditions of employment. Under the new rule, it will be deemed a violation of the NLRA if an employer fails to post the notice. Such failure would also extend the time period for filing unfair labor practice charges, and may be evidence of anti-union motivation in any NLRB proceeding in which motive is an issue.

Employers having questions about the new NRLB rule and its posting requirements may wish to contact a member of the Firm for guidance.

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