This rule applies to all employers subject to the NLRA regardless of whether the employer has a unionized workforce.

Obtaining A Copy Of The Required Notice

Copies of the required notice, written in both English and foreign languages, can be obtained at no cost at any of the NLRB’s regional offices or by download from the NLRB’s website at http://wwrv.nlrb.gov.

If the notice is downloaded from the website, employers must print it in color on paper that is at least 11 inches by 17 inches in size. Employers may also use a commercially produced poster that consolidates other legally mandated labor and employment notices into one large poster, as long as the portion of the poster containing the NLRA rights notice is identical in size, content, format, and style to the NLRA rights notice provided by the NLRB.

Posting Requirements

The notice must physically be posted in conspicuous places where it can be readily seen by all employees a¡d in each location where the employer customarily posts personnel rules and policies. In addition, if the employer has a website on which it customarily posts rules and policies related to personnel matters, the employer must also post the NLRA rights notice on its website. This can be accomplished by posting an exact copy of the notice downloaded from the NLRB website or by posting a link to the NLRB website. If an employer opts to post the link to the NLRB website, the link on the employer’s website must read, “Employee Rights under the National Labor Relations Act.”

Requirements For Workplaces Where Employees Speak Foreign Languages

If 20% or more of the workforce is not proficient in English and speaks a language other than English, the employer must also post a copy of the notice written in the language the nonEnglish speaking employees speak. If these non-English speaking employees speak more than one language, the employer may either: (1) post a copy of the notice written in each language; or (2) post a copy of the notice written in the language spoken by the largest group of non-English speaking employees and provide each other non-English speaking employee a copy of the notice written in the language that he or she speaks. In addition, if the employer has a website on which it customarily posts personnel policies and rules, the employer must download from the NLRB website and post exact copy(ies) of the foreign language notices(s) or post a link to the NLRB website (appropriate translations of the link will be provided by the NLRB). If a notice is not available from the NLRB in a language that an employer must post pursuant to this rule, the employer will not be held liable for noncompliance.

Noncompliance

The NLRB does not conduct audits of workplaces. Nor does it initiate enforcement actions on its own. There are no monetary fines for failure to post the notice. If, however, a failure to post the notice is brought to the Board’s attention through the filing of an unfair labor practice charge, the employer may be found to have committed an unfair labor practice. The NLRB has stated that, in most cases, it expects that an employer which failed to post the notice will have been unaware of the rule and so will simply require the employer to post the notice. If the employer complies with that directive then, in most situations, the matter will be deemed closed without any further action by the NLRB. Failure to post the notice, however, could affect the outcome of unfair labor practice proceedings brought against the employer relating to other violations of the NLRA. For example, an employee typically has six months to file an unfair labor practice charge. The NLRB has indicated that this six-month period may be extended if the employer fails to post the NLRB notice. In addition, a “knowing and willful refusal” by an employer to post the notice maybe considered evidence of unlawful motive in an unfair labor practice case involving other alleged NLRA violations.

Challenges To The New Rule

In the short time since its adoption, legislative bills seeking to repeal the new rule have been introduced and lawsuits challenging it have been filed. At this time, however, employers should be prepared to comply with the rule beginning on January 31, 2012 unless and until the litigation is successful or the new legislation is implemented. We will further update you if the rule is repealed, suspended or amended.

If you have any questions regarding this new ru1e, please do not hesitate to contact us.

THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.

© Lamb & Barnosky, LLP, 2011