NLRB Proposes Major New Notice Requirement

Posted on December 28, 2010 by Suzanne M. Boy

Last week, the National Labor Relations Board ("NLRB") issued a news release announcing a proposed rule which would impose a new notice requirement on employers subject to the National Labor Relations Act ("NLRA").  The notice would inform employees of their rights under the NLRA, including their right to unionize.

According to the press release, the NLRB "believes that many employees protected by the NLRA are unaware of their rights under the statute.  The intended effects of this action are to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions." 

The proposed rule is open for a 60-day comment period.  If the rule passes, covered employers would be required to post the employee rights notice where other notices (i.e. FLSA notices, FMLA notices, OSHA notices, etc.) are typically posted.  Additionally, an employer may be required to post the notice electronically, if that is the primary method by which the employer communicates with its employees.

A fact sheet is available here.  The full text of the proposed rule is available here.  Check back with us for an update after the comment period ends February 22, 2011.

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New NLRA Notice Posting Requirements for Federal Contractors

Posted on June 6, 2010 by Suzanne M. Boy

The final rules implementing Executive Order 13496, which was signed by President Obama on January 30, 2009, were recently issued.  Under the new rules, federal contractors and subcontractors are required to inform employees of their rights under the National Labor Relations Act ("NLRA"), the primary federal law that governs relations between unions and private employers.  Importantly, the new posting requirements do not apply to contracts under the Simplified Aquisition Threshold (currently $100,000) or to subcontracts under $10,000.

The notice informs employees of their NLRA rights with regard to organizing and collective bargaining, conduct that is deemed an unfair interference with employee rights, and information on contacting the National Labor Relations Board if an employee believes his or her rights have been violated.  The notice must be posted conspicuously in plants and offices where notices to employees are customarily posted.  If the employer customarily posts notices electronically, the employer must post this notice electronically as well.

The Department of Labor ("DOL") issued a "Fact Sheet" with helpful information, which you can download here.  The DOL also provides the model notices on its website.  The notice must be at least 11x17 inches in size.  Employers who can print on large paper can use this form.  Employers without the capability of printing on large paper must use this form, and tape it together so that it is at least 11x17 inches in size.

Please note that the notice must be posted no later than June 21, 2010.

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The NLRA...Not Just for Unionized Workplaces

Posted on February 25, 2010 by John F. Potanovic

A provision in fictional ACME, Inc.'s employee handbook states:

"All employees are strictly prohibited from discussing their salary or wage information with one another. Violation of this policy may lead to discipline up to and including termination."

This provision, or one similar to it, is undoubtedly found in handbooks or other work rule documents in many workplaces. Is there a problem? Yes—and it could become more pronounced if not rectified soon by ACME and/or other employers.

Many employers are surprised to learn that the National Labor Relations Act ("NLRA") applies to non-union workplaces. It does, and Section 7 of the NLRA guarantees that all employees, regardless of union status, have the right to engage in "concerted activities for the purpose of . . . mutual aid or protection." This means that all employers, both union and non-union, are prohibited from interfering with their employees' right to discuss terms and conditions of employment, including wages and benefits, with each other.

In a relatively recent National Labor Relations Board decision, the NLRB found that an employer's "Confidentiality" rule, which prohibited employees from discussing disciplinary information and salary, "plainly infringes upon Section 7 rights" as it "explicitly restricts discussion of terms and conditions of employment."

Now that we know stifling discussion about wages and benefits risks violation of the NLRA, what about other ramifications?  Another consideration after the jump. 

Consider:

Two employees are overheard "gossiping" about (or even exchanging e-mails about) a manager's perceived sexually inappropriate comments. The HR Director, who overheard (or intercepted) the exchange writes them up for their gossiping.

Problem? It could be.  In a factually similar case the NLRB held that HR's disciplinary action was considered a directive not to engage in the protected activity of discussing "conditions of employment" with co-employees, and therefore a violation of the NLRA.

Under the current administration, it is particularly important for employers and HR professionals to ensure their policies are not violating the NLRA, as President Obama seeks to strengthen the NLRB by adding a third member. Currently, there are only two members, and some courts find that decisions rendered by a two-member NLRB panel are not valid. Though the Obama administration is having some difficulty getting a third member of the NLRB confirmed, there are a few safe assumptions: (i) the NLRB will lean toward more employee-friendly positions, and (ii) increased funding being provided to the NLRB will result in stepped-up enforcement activity against employers. Employers and HR professionals should take care to review policies, and train other decision-makers on NLRA subtleties and compliance.
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