June 22, 2012

Poster Wars — the Saga Continues

Posted in National Labor Relations Act, Posting & Notice Requirements, Posting Requirements, Posting Requrements tagged , , , , , , , , , , , , , , , , at 2:16 pm by Tom Jacobson

The saga continues over the workplace poster requirement imposed by the National Labor Relations Board. As I have previously noted, in a lawsuit brought by the National Association of Manufacturers, the United States Court of Appeals for the District of Columbia has already issued an injunction temporarily blocking the requirement.

In a separate federal lawsuit brought by the United States and South Carolina Chambers of Commerce, another federal judge concluded that the rule is unlawful. However, the NLRB has now appealed that decision to the United States Court of Appeals for the Fourth Circuit. If the Fourth Circuit rules in favor of the NLRB, the split between the Fourth Circuit and the DC Courts of Appeal would set up the possibility of the issue ultimately being resolved by the United States Supreme Court.

For more information about the roller coaster history of this proposed rule, see my previous articles (A Post about Posters – New Workplace Posting Requirement Imposed by NLRBNLRB’s Posting Requirement Delayed, NLRB’s Posting Requirement Delayed Again, and NLRB’s Posting Requirement Blocked by Federal Court).

What you need to know: The NLRB’s rule, if eventually upheld, would require nearly all private-sector employers to post a notice informing employees of their rights under the National Labor Relations Act. The rule would also establish that an employer’s failure to post the notice “may be found to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by [the] NLRA…“. However, because of the DC Circuit’s temporary injunction, the rule is not in effect, so employers are not  required to post the notice. The Fourth Circuit appeal will also shed more light on the issue. Stay tuned.

For more information about this issue, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

Advertisements

April 18, 2012

NLRB’s Posting Requirement Blocked by Federal Court

Posted in National Labor Relations Act, Posting & Notice Requirements, Posting Requirements, Posting Requrements tagged , , , , , , , , , , , , , , at 9:23 am by Tom Jacobson

The United States Court of Appeals for the District of Columbia issued on April 17, 2012 an injunction which temporarily blocks the posting requirement the National Labor Relations Board has been attempting to impose.  The order was issued in the National Association of Manufacturers lawsuit I noted in my previous article, NLRB’s Posting Requirement Upheld – but Weakened – by Federal Judge.  For more information about the appellate court’s injunction, see NLRB Union Poster Rule Delayed While Challenge Proceeds and Appeals court blocks National Labor Relations Board from requiring union posters at work sites.

For more information about the roller coaster history of this proposed rule, see my previous articles (A Post about Posters – New Workplace Posting Requirement Imposed by NLRBNLRB’s Posting Requirement Delayed, and NLRB’s Posting Requirement Delayed Again).

What you need to know: The NLRB’s rule would have required nearly all private-sector employers to post by April 30, 2012 a notice informing employees of their rights under the National Labor Relations Act.   However, because of this temporary injunction, those employers will not be required to post the notice, but this could change as the issue winds its way through the federal court system. Stay tuned.

For more information about this issue, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

March 13, 2012

NLRB’s posting requirement upheld – but weakened – by federal judge

Posted in National Labor Relations Act, Posting & Notice Requirements, Posting Requrements tagged , , , , , , , , , , , , at 9:05 am by Tom Jacobson

A federal judge has ruled that part of the new poster requirement imposed by the National Labor Relations Board is valid, but other parts of the rule go too far.  As noted in my previous articles (A post about posters – new workplace posting requirement imposed by NLRBNLRB’s posting requirement delayed, and NLRB’s posting requirement delayed again), the posting requirement goes into effect on April 30, 2012, and it will require nearly all private-sector employers to post a notice informing employees of their rights under the National Labor Relations Act. The notice can be downloaded from the NLRB’s website.

The National Association of Manufacturers has challenged the requirement in a lawsuit brought against the NLRB in the United States District Court for the District of Columbia. In a 46 page opinion issued on March 2, 2012 Judge Amy Berman Jackson ruled that the posting requirement itself is lawful.

However, Judge Berman Jackson also concluded that other parts of the NLRB’s rule went too far. Specifically, she ordered that the NLRB exceeded its authority when it tried to make any failure to post the notice an unfair labor practice (ULP). She also concluded that the NLRB’s rule went too far by tolling the statute of limitations (that is, extending the time for taking legal action) in any future ULP action involving a job site where the notice was not posted.

What you need to know: Unless is it completely overturned in court, withdrawn by the NLRB, or stopped by congressional action, this posting requirement will go into effect on April 30, 2012. Even though Judge Berman Jackson has weakened the requirement by declaring that “the Board cannot make a blanket advance determination that a failure to post will always constitute an unfair labor practice,” the NLRB can still make the case that a failure to post is a ULP if the NLRB can “make a specific finding based on the facts and circumstances in the individual case before it that the failure to post interfered with the employee’s exercise of his or her rights.” To reduce that risk, post the notice.

For more information about this issue, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

January 4, 2012

NLRB’s posting requirement delayed – again

Posted in Posting & Notice Requirements tagged , , , , , , , at 1:08 am by Tom Jacobson

The National Labor Relations Board has again delayed the effective date of its new employee-rights posting requirement.  The requirement, which initially was to have gone into effect on November 14, 2011 was postponed until January 31, 2012.  Now, the NLRB has delayed the mandate again, and the posters will not be required until April 30, 2012.

In a statement issued December 23, 2011 the NRLB said that it has agreed to postpone the effective date at the request of a Washington, DC federal court which is hearing a legal challenge to the rule. According to the NRLB, “[I]t has determined 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.”

If the requirement ultimately withstands the pending legal challenges and goes into effect, most private sector employees will be required to post the notice which can be downloaded from the NLRB’s website.

For more information about this issue, please see my previous articles, A post about posters – new workplace posting requirement imposed by NLRB and NLRB’s posting requirement delayed, or contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

October 6, 2011

NLRB’s new posting requirement delayed

Posted in National Labor Relations Act, Posting & Notice Requirements, Posting Requrements tagged , , at 5:59 pm by Tom Jacobson

The National Labor Relations Board (NLRB) has delayed the workplace poster requirement that was to have gone into effect on November 14.  The Board has now postponed the mandate until January 31, 2012.

For more information about this issue, please see my previous post, A post about posters — new workplace posting requirement imposed by NLRB, or contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

August 26, 2011

A post about posters — new workplace posting requirement imposed by NLRB

Posted in Posting & Notice Requirements, Posting Requirements, Workplace Posters tagged , , , at 4:11 pm by Tom Jacobson

The National Labor Relations Board has issued a final rule requiring most private-sector employers to notify employees of their rights under the National Labor Relations Act.  The final rule, which is scheduled to be published on August 30, will go into effect on November 14, 2011, and it will apply to nearly all private-sector employers in the U.S.

Therefore, unless employers fit into one of the NLRB’s narrow exemptions, they will be required to post the notice, and they may be required to notify employees of their rights via other means, such as via an intranet or internet site. Employers are exempt from the notice requirements if they do not fit the NLRB’s jurisdictional standards.  Those standards are primarily based on the size of the company and the nature of its business, and they are summarized in the final rule.

The NLRB has also published a fact sheet that briefly explains the rule.

According to the Society for Human Resource Management, the legality of the rule is likely to be challenged because the majority of the 7,034 comments the NLRB received on the rule were in opposition to it (Board Issues Final Rule on Posting Requirement, SHRM 8/26/2011).  However, unless and until the rule is actually struck down or withdrawn, it is a rule that will apply to nearly all private-sector employers in the U.S.

Of course, the NLRB is not the only authority that imposes posting requirements. Various state and federal agencies mandate their own notices. Minnesota employers can find and download state-mandated posters from the Minnesota Department of Labor and Industry’s website.

For more information about this case, contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson, PA

February 16, 2011

Proposed rule: employers must post notice of union rights

Posted in Posting Requirements, Posting Requrements tagged , , , , , , at 10:50 am by Tom Jacobson

Under a rule proposed by the National Labor Relations Board, employers would be required to post a notice informing employees of their right to unionize.  According to the NLRB, “[M]any employees protected by the NLRA are unaware of their rights under the statute. The intended effects of this action are to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions.”  (See Board proposes rule to require posting of NLRA rights, NLRB Dec. 10, 2010 http://bit.ly/e8BEx4).

If the rule, (http://bit.ly/f4A8GU) becomes final, employers would be required to post yet another notice along with the myriad of other employment-related notices they must already post.  Furthermore, failure to post the notice would be treated as an unfair labor practice under the National Labor Relations Act.

Board member Brian Hayes dissented from the proposed rule, noting “the Board lacks the statutory authority to promulgate or enforce the type of rule which the petitions contemplated and which the proposed rule makes explicit.”  Other opponents have noted that the proposed notice provides a skewed explanation of employees’ rights along with pro-organizing examples.  (See NLRB rule has lawyers bracing for litigation, Minnesota Lawyer Feb. 14, 2011).

There is certainly a basis for these concerns.  The NLRA is a complex statute which is not limited to merely granting rights to employees; it also imposes obligations on them, and it provides certain protections to employers as well.  The text of the NLRB’s proposed notice lists all of the employees’ rights, but it does not mention their corresponding obligations or the employers’ rights.

The comment period for this proposed rule ends on February 22, 2010.  Comments may be posted electronically by going to http://bit.ly/f4A8GU.

If you have any questions about this post, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson, PA

%d bloggers like this: