Court Posterizes New Labor Posting

By David James and Joe Schmitt

In fall 2011, the National Labor Relations Board (“NLRB”) issued a final rule requiring nearly all employers, whether unionized or not, to display a new labor poster in the workplace. Among other things, the rule required that a hard copy posting 11”x17” in size be posted in a “conspicuous” place where other workplace notices are posted, that the notice be posted on the employer’s intranet or internet site if employee handbooks, personnel policies or other employee notices are posted there and, for worksites where 20% or more of employees speak a language other than English, that the posting be translated into that language.

Initially, the new posting requirement was slated to take effect on November 14, 2011. However, the NLRB’s authority to issue the posting requirement has been subject to various challenges in court, and the effective date has been pushed back twice, most recently to April 30, 2012.

On March 2, 2012, a federal district court dealt another blow to the posting rule. The United States District Court for the District of Columbia ruled that although the NLRB can require employers to post a notice of employee rights, it exceeded its authority by enacting the parts of the rule that establish penalties for failure to post a notice. The Court explained that the NLRB had no authority either to impose unfair labor practice liability on employers who fail to post a notice or to enact a rule that extends the statute of limitations on unfair labor practice actions against employers who fail to post. In essence, the Court determined that the NLRB could require the rule, but could not sanction employers for violating it.

Recently, a sister federal court, the District of South Carolina, concluded that the rule was impermissible altogether. Under this decision, the NLRB cannot require the posting at all — with or without teeth.

Even more recently, on Tuesday, April 17, 2012, the D.C. Circuit Court of Appeals enjoined the final rule following an appeal of the March 2 decision above. The short-term impact is to postpone implementation of the posting requirement (under either District Court interpretation) at least until the end of the pending litigation. This will likely take months, as the Court will not decide until after oral arguments, which is to be scheduled for September. Long-term, this decision signals the D.C. Circuit’s willingness to consider striking the posting requirement altogether, as the District of South Carolina did.

In short, posting by the April 30 deadline is not required. We will continue to work with FEMA to provide you updates regarding the status of the NLRB’s controversial posting rule.

David James and Joe Schmitt are shareholders in the labor and employment group at Nilan Johnson Lewis. Association members are entitled to 30 minutes of free advice from David or Joe regarding labor and employment issues as an additional benefit of membership.