By
Scott Brink , JMBM
September 1, 2011
September 1, 2011 — The National Labor
Relations Board (“NLRB”) published in the Federal Register this week a
Final Rule requiring most private-sector employers -- even if not
unionized -- to notify employees of their rights under the National
Labor Relations Act ("NLRA") by posting paper and, where applicable,
electronic notices identifying those rights.
The Rule, which was highly controversial due to
the perception of some employers that it is intended to unfairly foster
union organizing, will take effect 75 days from today. Employers
covered by the NLRA should begin posting the notice on November 14,
2011. Employers engaged in interstate commerce (which includes
employers who buy, sell, or ship more than $50,000 of goods or services
out of state) typically fall within the jurisdiction of the NLRA.
In contrast to most other federal and state
employment laws, the NLRA does not require notice to employees of their
rights under it. The new rule changes this and requires employers to
give notice of employee rights, such as:
- The right to organize a union to
negotiate with an employer concerning wages, hours and other terms and
conditions of employment
- The right to form, join or assist a
union
- The right to discuss terms and
conditions of employment or union organizing with co-workers or a
union.
The 11-by-17-inch notice required by the Rule
is similar in content and design to a notice of NLRA rights that must
be posted by federal contractors under a Department of Labor rule.
Additionally, covered employers with intranets are required to
distribute the notice in electronic form if the intranet is used to
post personnel policies and procedures. The NLRB will provide an
acceptable form of the notice on November 1.
The NLRB published the following “questions and
answers” with the new Rule:
Does my company
have to post the notice?
The posting requirement applies to all
private-sector employers (including labor unions) subject to the
National Labor Relations Act, which excludes agricultural, railroad and
airline employers. In response to comments received after the proposed
rule was announced, the Board has agreed to exempt the U.S. Postal
Service for the time being because of that organization’s unique rules
under the Act.
When will the
notice posting be required?
The final rule takes effect 75 days after it is
posted in the Federal Register, or on November 14, 2011.
There is no union
in my workplace. Will I still have to post the notice?
Yes. Because NLRA rights apply to union and non-union workplaces, all
employers subject to the Board’s jurisdiction (aside from the USPS)
will be required to post the notice.
I am a federal
contractor. Will I have to post the notice?
The Board’s notice posting rule will apply to
federal contractors, who already are required by the Department of
Labor to post a similar notice of employee rights. A contractor will be
regarded as complying with the Board’s notice posting rule if it posts
the Department of Labor’s notice.
I operate a small
business. Will I have to post the Board’s notice?
The rule applies to all employers subject to the
Board’s jurisdiction, other than the U.S. Postal Service. The Board has
chosen not to assert its jurisdiction over very small employers whose
annual volume of business is not large enough to have a more than a
slight effect on interstate commerce. The jurisdictional standards are
summarized in the rule.
How will I get
the notice?
The Board will provide copies of the notice on request at no cost to
the employer beginning on or before November 1, 2011. These can be
obtained by contacting the NLRB at its headquarters or its regional,
sub-regional, or resident offices. Employers can also download the
notice from the Board’s website and print it out in color or
black-and-white on one 11-by-17-inch paper or two 8-by-11-inch papers
taped together. Finally, employers can satisfy the rule by purchasing
and posting a set of workplace posters from a commercial supplier.
What if I
communicate with employees electronically?
In addition to the physical posting, the rule
requires every covered employer to post the notice on an internet or
intranet site if personnel rules and policies are customarily posted
there. Employers are not required to distribute the posting by email,
Twitter or other electronic means.
Many of my
employees speak a language other than English. Will I still have to
post the notice?
Yes. The notice must be posted in English and in
another language if at least 20% of employees are not proficient in
English and speak the other language. The Board will provide
translations of the notice, and of the required link to the Board’s
website, in the appropriate languages.
Will I have to
maintain records or submit reports under the Board’s rule?
No, the rule has no record-keeping or reporting
requirements.
How will the
Board enforce the rule?
Failure to post the notice may be treated as an
unfair labor practice under the National Labor Relations Act. The Board
investigates allegations of unfair labor practices made by employees,
unions, employers, or other persons, but does not initiate enforcement
action on its own.
What will be the
consequences for failing to post the notice?
The Board expects that, in most cases, employers
who fail to post the notice are unaware of the rule and will comply
when requested by a Board agent. In such cases, the unfair labor
practice case will typically be closed without further action. The
Board also may extend the 6-month statute of limitations for filing a
charge involving other unfair labor practice allegations against the
employer. If an employer knowingly and willfully fails to post the
notice, the failure may be considered evidence of unlawful motive in an
unfair labor practice case involving other alleged violations of the
NLRA.
Can an employer
be fined for failing to post the notice?
No, the Board does not have the authority to levy
fines.
Was there a
public comment period? What was the response?
The Board received more than 7,000 public
comments after posting a notice of the proposed rule in the Federal
Register. A detailed description of the comments and the Board’s
response to them, including responsive modifications to the rule, may
be found in the Preamble to the Final Rule.
The full text of the Rule can be found here:
https://www.nlrb.gov/news-media/fact-sheets/final-rule-notification-employee-rights
For more information on the Rule and its
application to your business, contact Scott Brink.
R. Scott Brink is a partner at
Jeffer
Mangels Butler & Mitchell LLP specializing in labor and employment
law.
For more information on the Rule and
its application to your business, contact Scott at
[email protected]
or 310.785.5365.
________________________
This
is Jim Butler, author of www.HotelLawBlog.com
and hotel lawyer, signing off. We've done more than $60 billion of
hotel
transactions and have developed innovative solutions to unlock value
from
hotels. Who's your hotel lawyer?
________________________
Our
Perspective. We
represent hotel lenders,
owners and investors. We have helped our clients find business and
legal
solutions for more than $60 billion of hotel transactions, involving
more than
1,300 properties all over the world. For more information, please
contact Jim
Butler at [email protected]
or +1
(310) 201-3526.
Jim
Butler is a founding partner of JMBM, and Chairman of its Global
Hospitality
Group® and Chinese Investment Group™. Jim is one of the top
hospitality
attorneys in the world. GOOGLE "hotel lawyer" and you will see why.
Jim
and his team are more than "just" great hotel lawyers. They are also
hospitality consultants and business advisors. They are deal makers.
They can
help find the right operator or capital provider. They know who to call
and how
to reach them.
JMBM’s
Global Hospitality Group®
The
hotel lawyers in the Global Hospitality Group® of
Jeffer Mangels Butler & Mitchell (JMBM) comprise the premier
hospitality
practice in a full-service law firm and are the authors of the Hotel Law Blog. We
represent hotel owners, developers, investors and lenders and have
helped our
clients find business and legal solutions for more than $60 billion of
hotel
transactions, involving more than 1,000 properties worldwide. For more
information
about the Global Hospitality Group®, go to www.HotelLawBlog.com.
For more information about full range of legal services provided by
JMBM, go to www.JMBM.com.