National Labor Relations Board (NLRB) Sued Again

Business Advocacy Groups Sue NLRB over New Posting Rule

On August 30th, the National Labor Relations Board (NLRB) published its final rule requiring all private businesses within its jurisdiction to post a notice at the place of employment notifying employees of their rights under the National Labor Relations Act.

In keeping with the contentious national environment surrounding recent NRLB actions, the agency and its members have been promptly sued by several business advocacy groups, including the National Association of Manufacturers, the National Federation of Independent Business and the U.S. Chamber of Commerce. Among other things, these lawsuits accuse the NLRB of failing to comply with proper administrative rule-making procedures when it promulgated the new posting rule. The lawsuits also assert that the new rule violates the First Amendment rights of businesses by compelling employers to engage in speech with which they do not agree.

NRLB Response to Recent Lawsuits

The NLRB has responded to these lawsuits by pointing out that the poster simply informs employees of their legal rights, just as similar required posters do with respect to other employment and labor laws, such as the Fair Labor Standards Act and federal and state anti-discrimination laws. The NLRB will likely prevail in the recent lawsuits, as these other posting requirements have held up to similar legal challenges in the past. Nonetheless, we will continue to follow these lawsuits with interest over the coming weeks.

Unless Lawsuit Succeeds, Rule Effective November 14, 2011

Unless the lawsuits succeed in preventing the rule from taking effect —an unlikely scenario, covered employers will be required to post the NLRB’s notice starting November 14, 2011. A copy of the notice can be obtained from any of the NLRB’s regional offices, and it can also be downloaded from the NLRB’s website. According to the rule, failing to post the notice after the effective date may be considered an unfair labor practice under the National Labor Relations Act, for which an employee or union could file a charge with the NLRB. Additionally, the six-month statute of limitations for an employee’s filing of an unfair labor practice charge may also be tolled indefinitely where an employer did not post the required notice in accordance with the rule.

Contact an Employment Law Attorney

For legal advice concerning labor issues or to find out whether your business is covered by the NLRB’s jurisdiction, call our law firm at (718) 275-6700 or email us to arrange a consultation.

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