New NLRA rights poster to be required for most employers

Most private employers will be required to display a poster notifying employees of their rights under the National Labor Relations Act (NLRA), under a new rule that takes effect on November 14, 2011. Among other things, the poster tells employees they have the right to join a union, bargain collectively with their employer, take action with one or more co-workers to improve working conditions, talk about or solicit for a union during non-work time, or to refrain from any of these activities (76 Fed Reg 54006, Aug 30, 2011). Some key points to be aware of:

• Poster is online: The National Labor Relations Board has posted the final copy on its website and will also mail hard copies upon request. 
• No double-posting for federal contractors: The poster will have some minor differences in language from the one currently required by the Department of Labor (DOL) for certain federal contractors, but the good news is that federal contractors who post the DOL poster will be deemed to be in compliance with this new regulation from the National Labor Relations Board.
• Physical posting: The posters must be displayed in conspicuous places where employees can see them, including places where you customarily post personnel rules or policies. The required size is 11x17 inches.
• Electronic posting: If you have an intranet or internet site where you customarily post notices for employees about personnel rules or policies, then you must include this new poster, either as an exact copy, or as a link that says “Employee Rights under the National Labor Relations Act.” Fortunately in response to written comments from Vigilant, the Board backed away from their initial proposal that the link should contain the entire text of the poster’s introductory paragraph.
• Other languages: The Board will provide translations of its poster. If more than 20 percent of your workforce doesn’t read English well and they share a common language, you must post the translated copy.
• Failure to comply: In general, if someone complains that the notice hasn’t been posted in your workplace, the Board will simply order you to do so. If someone alleges that you took adverse action against an employee based on an unlawful motive, then the Board will consider a knowing and willful failure to display the poster as evidence that you had an unlawful motive. The most serious potential consequence of failing to display this poster is that the Board may extend the six-month deadline for an employee to file complaints under the NLRA. The idea is that the clock shouldn’t start ticking until the employee is informed of his or her rights.

Tips: The NLRA protects most workers in private industry, but it doesn’t protect supervisors and agricultural workers. It also doesn’t cover businesses subject to the Railway Labor Act. In addition, for very small businesses that have a minimal impact on interstate commerce, the Board won’t assert jurisdiction. The Board’s new rule has a helpful explanation of the dollar thresholds it uses to assess impact on interstate commerce for retail industries ($500,000 in gross annual volume of business) and non-retail industries ($50,000 in direct or indirect purchases or sales of out-of-state goods or services). There is also a chart listing different dollar amounts for special industries. See section 104.204 on pages 54047-54048 of the Federal Register notice or contact your Vigilant staff representative if you’re unsure.