Employment Law Update

The National Labor Relations Board (NLRB) issued a press release on December 21, 2010 announcing that it will issue notice of a proposed new rule requiring all employers subject to the National Labor Relations Act (NLRA) to notify employees of their rights under the NLRA. Those NLRA rights include the right to act together to improve wages and working conditions, to form, join and assist a union and to bargain collectively with their employer. The press release states that the purpose of the proposed rule is “to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions.” Employers have never previously been required to post notice about the labor relations law and the NLRB has stated that it believes that most employees, especially immigrants, do not know they have NLRA rights.

The required notice will be available from NLRB offices or through the agency’s website. Under the proposed rule, the notice will be similar in content to the notice that federal contractors are currently required to post and must be posted where other workplace notices are typically posted. Employers will be required to post the notice electronically (or provide employees with a link to the NLRB’s website), in addition to a physical posting, if the employer customarily communicates with employees though e-mail, an intranet or other electronic means. Federal contractors that already post the required notice for contractors will not be required to post the new notice. Where a significant portion of an employer’s workforce is not proficient in English, the employer must provide the notice in the language employees speak.

In a “Fact Sheet” on its website, the NLRB states that failure to post the notice will be treated as an unfair labor practice under the NLRA. The Board investigates allegations of unfair labor practices made by employees, unions, and other persons. Employers cannot be fined for failing to post the notice, but can be ordered to post the notice. The Board has stated that it “expects that most employers that fail to post the notice would do so because they were unaware of the rule, and would comply when requested by a Board agent.” The proposed rule, however, does allow for the Board to impose other sanctions in the event of non-compliance. If an employer “knowingly fails” to post the notice, the proposed rule provides that the failure could be considered as evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA. In addition, if the notice is not posted and an employee files an unfair labor practice charge under the NLRA, the proposed rule allows the Board to excuse the employee from the six-month limitations period for filing charges, unless it can be shown the employee received actual or constructive notice that the conduct complained of is unlawful.

The NLRB has provided for a 60-day period during which the public may submit comments on the proposed rule. For more information or questions, contact: Chuck Bacharach, 410-576-4169 or Bob Kellner, 410-576-4239.