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Details on the NLRB’s final posting rule

September 21, 2011

As described in our August 31, 2011 post, the National Labor Relations Board (NLRB) has issued a Final Rule that will become effective on November 14, 2011. Under the new rule, employers must post notices to employees, in conspicuous places, informing the employees about their National Labor Relations Act (NLRA) rights to organize and engage in other concerted activities. Among other information, the notices will have to include contact information and information concerning basic enforcement procedures.

Who does the rule apply to? The rule applies to all private employers subject to the NLRA, which includes virtually all employers with receipts of $500,000 or more, and some employers with lower receipts. The new rule will apply to non-profits and healthcare organizations also. In 1974, the NLRA was amended to establish the new category of employer called “health care institutions,” which was defined to include “any hospital, convalescent hospital, health maintenance organization, health clinic, nursing home, extended care facility, or other institution devoted to the care of sick, and for an aged person(s).”

General Posting Requirements
Under the new rule, “all employers subject to the NLRA must post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures.” The law has a posting size requirement and “the notice to employees shall be at least 11 inches by 17 inches in size, and in such format, type size, and style as the Board shall prescribe.”

Electronic Posting Requirement
In addition to physical posting requirements, an employer must also post the required notice on an intranet or internet site if the employer customarily communicates with its employees about personnel rules or policies by such means.

Language Requirements
Where 20% or more of an employer’s workforce is not proficient in English and speaks a language other than English, the employer must post the notice in the language employees speak. If an employer’s workforce includes two or more groups constituting at least 20% of the workforce who speak different languages, the employer must either physically post the notice in each of those languages or, at the employer’s option, post the notice in the language spoken by the largest group of employees and provide each employee in each of the other language groups a copy of the notice in the appropriate language.

How to Obtain a Sample Notice
Last week, the NLRB issued a form of notice that employers may use to satisfy the new posting requirement.  That form can be found here.

Next Steps
Employers will have to comply with the new rule or risk being charged with an unfair labor practice by the NLRB. However, the compliance obligation does not preclude an employer from taking steps to educate its workforce regarding reasons that a union may be detrimental to job security and company health.

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