As it currently stands, beginning January 31, 2012, all private sector employers subject to the National Labor Relations Act (NLRA) must post a notice informing employees of their right to: act together to improve wages and conditions; form, join and assist a union; collectively bargain; and refrain from any of these activities. The notice also gives examples of unlawful union and employer conduct, and instructs employees to contact the National Labor Relations Board (NLRB) with questions and complaints.
Which private sector employers are subject to this requirement?
Almost all private sector employers are subject to these requirements, even if they are not unionized. However, certain employers in the agricultural, railway and airline industries are exempt from the NRLA. Furthermore, federal contractors who already posted the U.S. Department of Labor’s “notice of employee rights” do not have to post this additional notice. Small businesses are subject to this requirement if their annual volume of business has “more than a slight effect on interstate commerce.” Specifically, retail employers are subject to the posting requirement if their gross annual volume of business is at least $500,000.00. Non-retail employers must post this notice if their annual inflow (goods purchased by the employer from out-of-state) or outflow (goods sold out-of-state) exceeds $50,000.00.
How can my company comply with this rule?
The poster is available on the NLRB website, at www.nlrb.gov/poster. Posters are also available at NLRB regional offices. Employers can print notices on 11-by-7-inch paper, or two 8 ½ -by-11-inch papers taped together. Employers may also purchase a set of workplace posters from a commercial supplier.
Notices must be posted in a conspicuous place where other employee announcements are customarily posted. Employers who typically post personnel rules and policies on the internet or intranet must also post this notice electronically. Additionally, if twenty (20) percent or more of an employer’s workforce is not proficient in English but is proficient in a foreign language, the employer must post a copy of the notice in both English and the foreign language.
What are the penalties for violating this requirement?
The NLRB may treat a failure to post the required notice as an unfair labor practice under §8(a)(1) of the NLRA. Although the NLRB cannot fine an employer for not posting the notice, a violation can extend the six-month statute of limitations on other unfair labor practice charges. The NLRB may also use a “knowing” and “willful” failure to post as evidence of unlawful motive in an unfair labor practice charge involving other alleged violations of the NLRA.
Implications for Employers
As discussed above, almost all employers – even those without unions — are subject to the NLRA. Considering all employees will now be better informed of their rights under the NLRA, private, non-unionized employers are urged to become familiar with what employers are allowed to do, and what employers are prohibited from doing, with respect to union-related behavior. Employers that are concerned about union organizing may wish to take additional steps to ensure management is familiar with these rules. Halpern Employment Law Advisors frequently trains management on maintaining union-free status and responding to union organizing.