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October 4, 2011

NLRB Adopts Notification Rule

In December 2010, the National Labor Relations Board ("NLRB") issued a proposed rule that would require employers subject to the National Relations Act (the "Act") to post notices informing employees of their rights under the Act. Over 7,000 comments were received in response to the proposed rulemaking, the vast majority against the proposed rule. The opposition to the rule notwithstanding, on August 30, 2011, the NLRB issued its final rule requiring the posting of such notice. The Rule applies to all employers covered by the Act, which includes all but the very smallest private employers. The Act does not apply to employers who do less than $50,000 in interstate commerce in a year. The Rule was to take effect November 14, 2011 and the Board has published a poster that will satisfy the requirements of the Rule; however, the Board recently postponed the implementation of the posting requirement to January 31, 2012.

On September 9, 2011, the National Association of Manufacturers filed an action in federal court in the District of Columbia challenging the NLRB's authority to issue the rule. Similarly, on September 19, 2011, the South Carolina Chamber of Commerce and the United States Chamber of Commerce filed an action in federal court in South Carolina challenging the legality of the rule. The South Carolina Action seeks a preliminary injunction enjoining enforcement of the rule pending the Court's determination of the merits of the challenge. The Court has yet to rule on that request. At the current point in time, therefore, the Rule stands and its revised effective date of January 31, 2012 remains. If the federal courts grant the requested injunctive relief, requirements to post the notice may not come into effect.

What happens if an employer does not comply with the Rule. If the NLRB finds that the failure to comply was inadvertent, it will offer the employer the opportunity to comply. If the NLRB finds that the failure to comply was intentional, an unfair labor practice could be filed against the employer. In addition, the Rule contains a provision that tolls the six month statute of limitations for the filing of an unfair labor practice charge where the employer has failed to make the required posting unless the employer can demonstrate that the employee received actual or constructive notice that the conduct complained of was unlawful.

If you have any questions or require our assistance in reviewing your policies or conducting management training, please contact the Hiscock & Barclay lawyer with whom you normally work or any attorney in our Labor & Employment practice area.


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