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After several postponements, the National Labor Relations Board (“NLRB”) recently announced that it is going forward with a new rule requiring most private employers to post notices regarding employee rights under the National Labor Relations Act (“NLRA”). The posting requirement will be effective January 31, 2012. Codified at 29 C.F.R. § 104.202, the posting requirement applies to all private employers subject to the NLRB’s jurisdiction. A common misconception is that only unionized employers are subject to the NLRB’s jurisdiction. In fact, all private employers except agricultural, railroad, and airline employers are covered by the NLRB.
The notice must be posted in conspicuous places where it can be readily seen by employees. This includes all places where notices to employees concerning personnel rules or policies are “customarily posted,” which means any location where other required notices (such as “Equal Employment is the Law” posters) are posted. In addition, employers that customarily communicate with employees about rules or policies using an intranet or internet site must also post the notice electronically. The rule provides two ways to post the notice electronically: (1) place an exact copy of the NLRB’s poster on the site; or (2) create a link to the NLRB’s website; the link must read, “Employee Rights under the National Labor Relations Act.” Either method will comply with the rule as long as the notice is displayed “no less prominently than other notices to employees.”
The rule also requires the notice to be posted in languages other than English if 20 percent or more of an employer’s employees are not proficient in English and speak another language. If an employer’s workforce includes two or more groups constituting at least 20 percent of the workforce who speak different languages, the employer must either post the notice in each of the 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.
Failure to post the required notice could subject employers to unfair labor practice charges, which are brought by any employee (unionized or non-unionized) to the NLRB. Possible consequences include tolling of the six month statute of limitations for unfair labor practice charges against the employer and, where the motive for a personnel action is at issue, an inference that the employer took the action for unlawful reasons.
A poster that includes all of the required information is available for free on the NLRB’s website: www.nlrb.gov/poster. The poster can be downloaded or ordered from the website and currently is available in 24 languages other than English. If an employer needs the notice in a language that is not currently available, the employer should request the notice in the particular language from the NLRB. As long as the request is made, an employer will not be liable for failing to post the notice in a particular language until the notice is available in that language.
For more information, contact Ben Mathis at 770.818.1402 or[email protected] or Jonathan Kandel at 770.818.1427 or[email protected].