Employers are legally required to post at their workplaces information about a variety of employment laws and rights, including employment discrimination and harassment law, minimum wage, overtime, family and medical leave, and workers’ compensation. The National Labor Relations Board just issued a new final regulation, requiring all but the smallest employers to post information about employees’ rights under the National Labor Relations Act. Employers must be prepared not only to meet the November 14, 2011 deadline but also to lawfully and correctly answer the questions that the information in the poster likely will raise.
The poster primarily addresses employees’ rights to join unions and the protections of the Act. The poster lists the right to organize or bargain collectively, negotiate terms and conditions of employment with an employer, discuss working conditions with coworkers, strike or picket in certain circumstances, or refrain from doing any of these things.
The poster also informs employees of “unfair labor practices,” under the Act. Examples include prohibiting employees from talking about or soliciting for a union during non-work time, distributing union literature during non-work time in non-work areas, questioning employees about union support or activity in a manner that discourages participation, taking or threatening adverse action for engaging in concerted activity, threatening to close a workplace if workers choose a union, promising benefits to discourage union support, prohibiting wearing union supportive clothing or paraphernalia except in special circumstances, and spying on or videotaping peaceful union activities or gatherings.
The notice itself is 11 x 17 inches. It must be mounted in conspicuous places readily seen by employees, including all places where personnel policies and rules are customarily posted. An employer must take “reasonable steps” to ensure the poster is not alternated, defaced, covered by other material, or otherwise unreadable.
Also, if an employer customarily posts notices to employees about personnel rules or policies on an Internet or intranet site, the notice must be posted there as well. As an alternative to “prominently” posting the notice on such a site, an employer can link to the Board’s website with the link, “Employee Rights under the National Labor Relations Act.”
If 20 percent or more of the workforce is not proficient in English, an employer must post the notice in the language the employees speak. If the 20 percent of employees speak two or more languages, the employers must physically post the information in each language, or may post in the language spoken by the largest group and provide the remaining groups with a copy in their primary language.
Fortunately, the Board provides free access to the poster on its website (www.nlrb.gov/poster). It also provides the poster in other languages. If an employer requests a copy in a language not available from the Board, the employer will not be liable for noncompliance until the poster becomes available in that language.
Not all employers must comply with the poster requirement. Certain employers with revenues too low to trigger the Board’s jurisdiction will be exempt from the poster requirement. Federal contractors, already required to display a similar notice from the Department of Labor, are already considered to meet the requirement. The Act also does not apply to workers in certain industries and occupations, such as agricultural and domestic workers, supervisors, anyone employed by a parent or spouse, or certain employers working in the transportation industry. The poster specifies these exclusions.
The Board will generally evaluate noncompliance with the posting requirement when it receives a complaint. The Board may investigate and attempt to persuade the employer to post the required information. However, if the Board and employer cannot resolve noncompliance informally, the Board may issue a formal complaint and order the employer to display the poster.
If the Board finds an employer’s violation is “knowing,” the Board may sanction the employer, toll the statute of limitations for filing other unfair labor practice charges unrelated to the posting requirement, and consider the failure to post as evidence of unlawful motive in other unfair labor cases where motive is at issue.
Employers should take steps to meet the posting requirements by the November 14, 2011 deadline. Preparation includes identifying appropriate posting locations, modifying Intranet sites accordingly, obtaining at least one copy of the poster per worksite, knowing whether and in which languages additional posters are needed, and ensuring management is aware that the new poster may not be defaced or removed.
While there are no guarantees that the poster requirement will increase attempts to unionize, employers should prepare to address questions generated by the poster. Because employees may approach supervisors and managers with questions, employers should provide these company leaders with basic training about the applicable rules. For example, supervisory personnel need to know that employees are legally entitled to discuss working conditions with one another, but that they should do so on their own time and in non-work areas. Supervisors have to know what they can and cannot say under the Act and whom to contact for assistance.
Because union membership in the private sector is so low, most employees probably will be surprised by the Act’s protections. However, there are few managers or even human resources executives familiar with the unique laws and rules applicable to union organizing and collective bargaining relationships.
There is a large body of sometimes confusing Board law governing what employers may and may not say or do in support of or opposition to unions, union organizing, and the other rights protected under the NLRA. Employers committed to remaining union-free should identify and engage lawyers who understand this area of the law. The number of traditional labor lawyers has dwindled as demand for their services has been low for a long time. The Board hopes its poster is going to change that. Time will tell if employees take notice.