The National Labor Relations Board (“NLRB”) has postponed the start date of its new rule requiring employers subject to the National Labor Relations Act (“NLRA”) (including labor organizations in their capacity as employers) to post notices informing their employees of their rights as employees under the NLRA. According to the NLRB, instead of the original effective date of November 14th, 2011, the provision will now take effect on January 31, 2012.
To date, three separate lawsuits have been filed challenging the final rule. In all three lawsuits, the plaintiffs are seeking declaratory and injunctive relief to have the final rule declared unlawful, and, as a result, to enjoin implementation, enforcement, and/or application of the rule. While there are some differences in the challenges raised in each of the lawsuits, one main argument is the assertion that the adoption of the new rule is not within the NLRB’s powers under Section 6 of the NLRA to make rules that are “necessary” to carry out the NLRA.
The National Association of Manufactures filed the first of the three lawsuits on September 8, 2011, in the United States District Court for the District of Columbia. Next, on September 16, 2011, the National Right to Work Legal Defense and Education Foundation, Inc., along with the National Federal of Independent Business, Southeast Sealing, Inc., and Racquetball Centers, Inc. d/b/a Lehigh Valley Racquet & 24-7 Fitness Clubs, filed suit in the United States District Court for the District of Columbia. Finally, on September 19, 2011, The Chamber of Commerce of the United States of America and the South Carolina Chamber of Commerce filed suit in the United States District Court for the District of South Carolina, Charleston Division.
In addition, opponents of the NLRB’s final rule have turned to Congress for relief from the new posting requirements. As a result, two bills (the Employer Free Choice Act, H.R.2854, and the Employee Workplace Freedom Act, H.R. 2833) have been introduced in Congress seeking to repeal the NLRB’s final rule. Similarly, a recent appropriations bill (Section 406 of H.R. 3070) would, if passed, deny funds to implement and enforce the final rule.
Please click here to view the explanation of the postponement by the NLRB. Interestingly, the NLRB says nothing about the pending legal challenges, but rather states that the postponement is due to "queries from businesses and trade organizations indicating uncertainty about which businesses fall under the Board’s jurisdiction, and was made in the interest of ensuring broad voluntary compliance."
Given the pending legal challenges to the final rule, the effective date of posting may change again or even be put on hold indefinitely. Employers would be well-advised to stay tuned and consult legal counsel regarding their specific posting responsibilities as the January 31, 2012, deadline approaches. Please note that the delay in the posting requirements does not affect the similar posting requirements promulgated by the OFCCP covering federal contractors, as indicated in a prior Michael Best client alert.
UPDATE: The NLRB changed the effective date of its employee rights notice-posting rule to April 30, 2012. Additional postponements are possible due to pending litigation related to the notice-posting rule. See https://www.nlrb.gov/poster for additional information and updates from the NLRB.