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Delaware Labor & Employment Law Update: For Now, Employers Are Not Required to Post the NLRB Notice Poster

April 20, 2012

In August 2011, Richards, Layton & Finger posted a Delaware Labor and Employment Law Update about the National Labor Relations Board (NLRB) rule requiring virtually all private sector employers to post a notice informing employees of their rights under the National Labor Relations Act (NLRA) by November 14, 2011. However, the D.C. Circuit Court has temporarily blocked the NLRB from requiring employers to post the notice.

In October 2011, the NLRB announced that the original posting deadline for the rights notice would be extended to January 31, 2012. Then in December 2011, the NLRB again extended the deadline until April 30, 2012, due to continuing legal challenges surrounding the NLRB’s authority to require employers to post the notices in their workplaces. In March 2012, the D.C. District Court upheld the notice requirement, but in April 2012, the South Carolina District Court found that the NLRB did not have authority to issue the notice requirement.

In light of conflicting decisions at the district court level, on April 17, 2012, the D.C. Circuit Court issued a ruling temporarily blocking the NLRB from requiring employers to post the notice, at least until the resolution of an appeal. The NLRB has also announced that its regional offices will not implement the notice requirement pending the resolution of the issues before the Court.

Our original summary of the posting rule is below.

New Mandatory Posting Requirements for Employers

On August 30, 2011, the NLRB issued a final rule that requires all employers subject to the NLRB's jurisdiction to post a notice informing employees of their rights under the NLRA. The rule becomes effective on November 14, 2011, and applies to virtually all private sector employers, even if their workforces are not unionized and even if they are not federal contractors.

The notice essentially outlines the NLRA and informs employees of their right to act together to improve wages and working conditions, to form, join and assist a union, and to bargain collectively with their employer, as well as to refrain from any of these activities. The notice also includes information regarding how an employee can report unlawful conduct by their employer.

The notice can be downloaded from the NLRB website at http://www.nlrb.gov and will also be provided at no charge by the NLRB regional offices on or before November 1. Translated versions will also be available and must be posted at workplaces where at least 20 percent of the employees are not proficient in English. Employers will also be required to post the notice on an intranet or internet site if personnel rules and policies are customarily posted there. Failure to post the notice may be deemed an unfair labor practice, may be evidence of unlawful motivation in a discharge case, and may toll the six-month statute of limitations for filing charges claiming violations of the NLRA.

Employers should be sure to take the necessary steps to comply with this new notice requirement by the November 14 deadline [now temporarily suspended pending the resolution of an appeal]. For more information on compliance, please contact a Richards, Layton & Finger attorney.

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