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In August 2011, the National Labor Relations Board (Board) implemented a controversial rule requiring employers to post notices informing employees of their rights under the National Labor Relations Act (NLRA) and providing for certain penalties if employers failed to comply. (Click here to read our original alert concerning this rule). On March 2, 2012, in a significant development for employers, a federal court invalidated parts of this rule.
Shortly after this rule was implemented, multiple groups—including the National Association of Manufacturers, the National Right to Work Foundation and the United States Chamber of Commerce—filed lawsuits seeking an injunction to prevent the Board from enforcing the rule. In the National Association of Manufacturers' lawsuit, a federal court in Washington, D.C. ruled that the Board may lawfully require employers to post a notice of employee rights, but it exceeded the authority granted to it by Congress by enacting the part of the rule that provides certain penalties for failing to post a notice. Specifically, the court ruled that the Board did not have the authority to (1) make an employer's failure to post the notice an unfair labor practice and (2) toll the statute of limitations for claims brought by employees against employers that fail to post the notice. On this basis, the court enjoined the Board from implementing and enforcing those parts of the rule.
In December 2011, after the court stated that the legal issues "deserve more time" than the previous January 31, 2012, effective date gave it, the Board delayed the effective date of this rule from January 31, 2012, to April 30, 2012. In its statement announcing the new April 30, 2012, effective date of the notice posting requirement, the Board said that "postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule."
The Board will most likely appeal the court's ruling, but for the time being, the Board is precluded by law from implementing and enforcing the penalties provisions in the rule. This ruling is a significant win for employers, as it effectively removes any teeth from the posting rule. If you have questions about the proposed posting rule or how this development affects your business, contact any of Faegre Baker Daniels' labor lawyers.
