Which Employers Must Comply with the Posting Requirement?
The posting requirement applies to all employers that are subject to the NLRA, which excludes agricultural, railroad, airline and federal, state and local government employers, as well certain other employers, such as those over which the NLRB has not asserted jurisdiction or which are considered by the NLRB to be too small to impact interstate commerce under NLRB standards.
The posting requirement applies without regard to whether the employer’s employees are represented by a union.
What Is Included in the Notice?
The Notice advises employees of such rights as:
· The right to organize a union to negotiate with their employer concerning wages, hours, and other terms and conditions of employment.
· The right to join or assist a union.
· The right to bargain collectively through representatives of the employees’ choosing for a contract setting wages, benefits, hours, and other working conditions.
· The right to discuss wages and benefits and other terms and conditions of employment or union organizing with co-workers.
· The right to choose not to do any of these activities, including joining or remaining a member of a union.
The content of the notice will be similar to the notice that federal contractors are already required to post under U.S. Department of Labor regulations. A federal contractor will be regarded as complying with the NLRB’s rule if it posts the Department of Labor notice.
The NLRB notice will be available on the NLRB’s website by November 1, 2011. See notice here.
When Must Employers Begin Posting the Notice?
Employers must begin posting the notice no later than November 14, 2011.
What Are the Posting Requirements?
· The notice must be posted in conspicuous places in the workplace, such as in the same location other employment posters are displayed.
· The notice must also be posted on an intranet or internet site if the employer customarily communicates with employees about personnel rules or policies by such means.
· Where 20 percent of more of an employer’s workforce is not proficient in English and speaks a language other than English, the employer must post the notice in the language employees speak.
What Are the Penalties for Failing to Comply with the Posting Requirement?
· Failure to post the notice may result in a finding by the NLRB that the employer has committed an unfair labor practice under the NLRA.
· The NLRB also may extend the 6 month statute of limitations for filing an unfair labor practice charge involving other unfair labor practice allegations against the employer.
Questions and Answers:
Does my company have to post the notice?
The posting requirement applies to all private-sector employers (including labor unions) subject to the National Labor Relations Act, which excludes agricultural, railroad and airline employers. In response to comments received after the proposed rule was announced, the Board has agreed to exempt the U.S. Postal Service for the time being because of that organization’s unique rules under the Act.
When will the notice posting be required?
The final rule takes effect 75 days after it is posted in the Federal Register, or on November 14, 2011.
There is no union in my workplace; will I still have to post the notice?
Yes. Because NLRA rights apply to union and non-union workplaces, all employers subject to the Board’s jurisdiction (aside from the USPS) will be required to post the notice.
I am a federal contractor. Will I have to post the notice?
The Board’s notice posting rule will apply to federal contractors, who already are required by the Department of Labor to post a similar notice of employee rights [3]. A contractor will be regarded as complying with the Board’s notice posting rule if it posts the Department of Labor’s notice.
I operate a small business. Will I have to post the Board’s notice?
The rule applies to all employers subject to the Board’s jurisdiction, other than the U.S. Postal Service. The Board has chosen not to assert its jurisdiction over very small employers whose annual volume of business is not large enough to have a more than a slight effect on interstate commerce. The jurisdictional standards are summarized in the rule.
How will I get the notice?
The Board will provide copies of the notice on request at no cost to the employer beginning on or before November 1, 2011. These can be obtained by contacting the NLRB at its headquarters or its regional, sub-regional, or resident offices. Employers can also download the notice from the Board’s website and print it out in color or black-and-white on one 11-by-17-inch paper or two 8-by-11-inch papers taped together. Finally, employers can satisfy the rule by purchasing and posting a set of workplace posters from a commercial supplier.
What if I communicate with employees electronically?
In addition to the physical posting, the rule requires every covered employer to post the notice on an internet or intranet site if personnel rules and policies are customarily posted there. Employers are not required to distribute the posting by email, Twitter or other electronic means.
Many of my employees speak a language other than English. Will I still have to post the notice?
Yes. The notice must be posted in English and in another language if at least 20% of employees are not proficient in English and speak the other language. The Board will provide translations of the notice, and of the required link to the Board’s website, in the appropriate languages.
Will I have to maintain records or submit reports under the Board’s rule?
No, the rule has no record-keeping or reporting requirements.
How will the Board enforce the rule?
Failure to post the notice may be treated as an unfair labor practice under the National Labor Relations Act. The Board investigates allegations of unfair labor practices made by employees, unions, employers, or other persons, but does not initiate enforcement action on its own.
What will be the consequences for failing to post the notice?
The Board expects that, in most cases, employers who fail to post the notice are unaware of the rule and will comply when requested by a Board agent. In such cases, the unfair labor practice case will typically be closed without further action. The Board also may extend the 6-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer. If an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.
Can an employer be fined for failing to post the notice?
No, the Board does not have the authority to levy fines.
Was there a public comment period? What was the response?
The Board received more than 7,000 public comments after posting a notice of the proposed rule in the Federal Register. A detailed description of the comments and the Board’s response to them, including responsive modifications to the rule, may be found in the Preamble to the Final Rule. [4]