A Controversial New Posting Requirement

Kegler Brown E-mployment Alert

The Obama administration has changed the employment landscape, not by new legislation, but by directives for new interpretations, increased enforcement actions, and new regulatory requirements from the various administrative agencies. The National Labor Relations Board (NLRB), with its newly-appointed pro-labor constituency, has been very active in changing the current rules. At the end of last December, the NLRB announced a new Notice of Proposed Rulemaking for a new workplace posting requirement.

Most non-union employers don’t pay too much attention to the NLRB; however, the posting requirement, if approved, will affect all employers, union and non-union. The posting requirements, which could have significant consequences for non-union employers, include the following:

  • Employers will be required to post a formal Notice which, among other things, will notify employees that they have a right to “take action with one or more co-employees to improve your working conditions by, among other means, raising work-related complaints directly with your employer or a government agency, and seeking help from the union.” Employees are also advised of their right to engage in picketing and strikes.
  • Employers will be required to post the new Notice and, in most cases, to distribute it to employees electronically.
  • Failure to post the new Notice will be an unfair labor practice. Failure to post could also extend the six-month limitations period for other unfair labor practice charges, and could be considered as “evidence of an unlawful motive” in NLRB cases.
  • Cynical observers interpret the new Notice requirement as one more encouragement to employees to unionize by the Obama administration, in return for the $60 million or more that organized labor contributed to the president’s campaign. The proposed rule and information about the rule is available at www.nlrb.gov.