New NLRB Notice Required

October 23, 2011

The National Labor Relations Board (NLRB) issued a final rule requiring most private-sector employers to notify employees of their rights under the National Labor Relations Act (NLRA). The NLRB will enforce employers to post a new NLRA notice in the workplace. The posting requirement is effective November 14, 2011

Covered Employers

The posting requirement applies to all private-sector employers (including labor unions) subject to the National Labor Relations Act. Because NLRA rights apply to union and non-union workplaces, all employers subjected to the Board’s jurisdiction (aside from the US Postal Service) will be required to post the notice. In general, the NLRA covers private employers that have an impact on interstate commerce which is based much on the dollar volume of business a company generates. For example, the law covers retail or service establishments with annual gross receipts of at least $500,000, manufacturing companies that ship at least $50,000 worth of goods across state lines or purchases at least $50,000 worth of goods from out of state.

Employers Not Covered

  • Government or Union Employers. Certain employers are specifically excluded by the NLRA: federal and state offices, Federal Reserve Banks, employers subject to the Railway Labor Act, labor unions and their officers and agents (except when they are acting as employers).
  • Companies that have a municipal function. A privately-owned company with an essentially municipal function is exempted from the NLRA.
  • Religious schools. An exception here is schools that are largely secular and not pervaded by a religious purpose.
  • Agricultural, railroad and airline employers are not impacted.

In a conspicuous area where employees can easily see and read it, the NLRA notice must be posted in English. If 20 percent or more of the staff is not proficient in English and speaks a language other than English, then the employer must post the notice in that other language. However, if two or more groups comprising at least 20 percent of the staff speak different languages, then the employer must either physically post the notice in each of those languages or post the notice in the language spoken by the largest group of employees and provide a copy in the other language(s) to each of the other employees. If an employer customarily communicates workplace policies to employees in an electronic format (i.e. a company intranet), then it must electronically post the notice as well. Failure to post the notice may constitute an unfair labor practice under the NLRA.

This new poster requirement will clearly bring more attention and increase interest in union organizing. As importantly, employers should anticipate an increase in complaints from non-union employees about work rules, especially those that run contrary to any of the poster information. In preparation, employers should become familiar with the NLRA language, review their company workplace policies and procedures to make sure that they do not conflict with the NLRA provisions, and be ready to discuss the NLRA rights with their employees.