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Judge Amy Jackson ruled on March 2, 2012 that the NLRB's rule requiring covered employers to post the "NOTICE OF EMPLOYEE RIGHTS UNDER THE NATIONAL LABOR RELATIONS ACT" no later than April 30th is valid. She ruled, however, that the NLRB has exceeded its authority regarding certain penalties against employers for their failure to post the Notice.

The Board's Rule contains provisions that the failure of an employer to post the Notice constitutes an independent Unfair Labor Practice, and that such failure to post may be regarded as evidence of an unlawful motive on the part of an employer in subsequent proceedings before the NLRB. The Rule further provides that a failure to post may toll the usual six-month statute of limitations for the filing of an Unfair Labor Practice Charge against an employer. Judge Jackson's Order holds that those consequences are severable from the Rule. Therefore, employers are still required to post the Notice by April 30th, but the three penalty provisions are not enforceable.

While the Court held that the Rule providing automatic penalties for failure to post is not enforceable, the Court left open the possibility that the failure to post may be an Unfair Labor Practice, or may toll the statute of limitations under particular circumstances.

Another challenge to the posting requirement is still pending in U.S. District Court in South Carolina. Further updates on the posting rule will be forthcoming on Wimberly Lawson's website as the actions proceed.

Wimberly Lawson has provided, and will continue to provide, information in seminars and workshops (as well as in providing legal counsel to clients when requested) on various considerations for employers as the mandatory posting date approaches. Employers are wise to prepare their supervisors and managers for the posting and for possible questions by employees. Employers are also considering providing information directly to their employees in the form of postings, handbook language, and other media regarding more detail on their rights, including rights to oppose unionization attempts and on the employers' positions regarding unionization and their preference for union-free environments. Should you have questions, please feel free to contact your Wimberly Lawson attorney for clarification.

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