To Post or Not to Post the NLRB Employee Rights Poster – That Is the Question
By now most employers are aware of the NLRB’s posting rule that requires most private and non-profit employers to post a notice of employee rights by April 30, 2012. Three recent developments have changed what employers are required to do.
Last Friday, a Federal District Court in South Carolina ruled that the NLRB did not have the authority to implement the posting rule. That decision arguably only covers South Carolina employers.
Earlier this month, a Federal District Court in the District of Columbia ruled that the NLRB did have the authority to implement the posting rule. That decision is under appeal. On April 17, 2012, the District of Columbia Circuit Court of Appeals temporarily enjoined implementation of the posting rule until the Court has fully considered the NLRB’s authority to implement the posting rule on appeal and issues a decision. A hearing on this appeal is expected to occur in September.
In response to these developments, yesterday afternoon NLRB Chairman Mark Pearce issued a notice stating that the NLRB will delay implementation of the posting rule in light of the injunction and conflicting opinions among the district courts. Chairman Pearce also stated that the NLRB intends to appeal the South Carolina decision to the Fourth Circuit Court of Appeals. He believes that the NLRB does have the authority to require employers to post the employee rights notice.
Takeaway: The D.C. Circuit Court of Appeals temporary injunction and the statement by NLRB Chairman Pearce make it clear that employers have no obligation to post the employee rights notice while these conflicting court rulings are on appeal. It now seems likely that this issue will not be decided until later this fall at the earliest. And it is entirely possible that this issue may go to the U.S. Supreme Court where we would be unlikely to have a decision until at least 2013. Stay tuned, but don’t put up that poster just yet!