In December 2010, we posted on the National Labor Relations Board’s (NLRB) proposed rule that would require private sector employers to post a notice advising employees of their right to join a union and of their other rights under the National Labor Relations Act (NLRA). On August 25, the NLRB adopted, by a 3 to 1 vote (Member Hayes dissenting) the Final Rule requiring the workplace notice. The Final Rule is scheduled for publication in the Federal Register on August 30 and will go into effect 75 days from that date, on November 14, 2011.

As we discussed in our earlier post, the notice will be an 11×17 inch poster, detailing employees’ rights under the NLRA. It also provides the NLRB’s contact information for use in the event an employee believes there has been a violation of the NLRA. The notice will have to be posted by November 14 both in hard copy at the worksite(s) and electronically on an internet or intranet site, if the employer customarily uses such electronic sites to communicate with employees about company rules and policies.

Despite the 7,000 comments received during the comment period, there were very few changes to the proposed rule. In particular, the Final Rule does not require that employers email the notices to employees or that the notices be printed in color. In a very small victory for management, the Final Rule does include language regarding an employee’s right to refrain from union activity.

The Final Rule sets forth three possible consequences for failure or refusal to post a notice. First, such failure may be grounds for an unfair labor practice charge under § 8(a)(1) of the NLRA, which prohibits employers from interfering with, restraining or coercing employees with regard to the exercise of rights granted under the NLRA. Second, failure to post the notice may extend the six-month statute of limitations period for filing an unfair labor practice charge, unless there is evidence the employee had actual or constructive notice that the conduct was unlawful. Third, where the NLRB finds a knowing and willful failure to post a notice, it may use the failure to post as evidence of unlawful motive in an unfair labor practice case. Initially, however, the NLRB has indicated that its focus will be on compliance, assuming that most employers who do not post a notice are simply unaware of the rule. In those circumstances, once the notice is posted, the case will be closed.

NLRB Regional Offices will provide employers with a notice poster at no charge, or the notice may be downloaded from the NLRB’s website. In addition, if 20% or more of an employer’s workers are not proficient in English, a translated version must be posted. Translated versions will also be available from the NLRB.