Hunton Employment & Labor Perspectives

On May 7, 2013, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit invalidated a rule promulgated by the NLRB that would have required employers to post notices of employee’s rights under the National Labor Relations Act (“NLRA”) in the workplace.  According to the Court, employers have the right not to speak, and thus can be silent, on these issues.  Another case regarding the same issue is currently pending on appeal in the Fourth Circuit.

In several prior blog entries, we told you about the NLRB’s new requirement that employers post a notice regarding employee rights under the NLRA.  Employers have been following the story with interest.

Initially proposed by the NLRB in December 2010, the new posting tells employees about their rights under the National Labor Relations Act (“NLRA”).  The new requirement initially had an effective date of November 14, 2011, but it has been delayed several times.  The NLRB first delayed implementation until January 31, 2012, to allow “for further education and outreach.”  Then, several industry groups and businesses filed federal lawsuits in South Carolina and Washington, D.C., challenging the NLRB’s Final Rule.  The groups argued the NLRB did not have statutory authority to issue the notice requirement.  While the lawsuits were pending, in the District of Columbia and South Carolina, the NLRB agreed to further delay implementation until April 30, 2012.

The NLRB announced today that the agency is postponing the deadline for the new employee rights posters from November 14 to January 31 to “allow for further education and outreach.”

We’ll continue to monitor and advise, particularly as to how the various court challenges may affect the agency’s actions on this issue.