NLRB Requires Employers to Notify Employees of Union Rights
Beginning November 14, 2011, the National Labor Relations Board (NLRB) will require all private sector employers, except agricultural, railway and airline employers, to post a notice to employees advising them of their rights as employees under the National Labor Relations Act (NLRA). The National Labor Relations Board is an independent federal agency responsible for and authorized to safeguard employees’ rights to organize and to determine whether to have unions as their bargaining representative. They also act to prevent and remedy unfair labor practices committed by private sector employers and unions. Although the NLRA has been in effect since 1935, the NLRB believes that many employees protected by the NLRA are unaware of their rights and therefore fail to adequately seek protection. The NLRB, known as the “Board” by labor law practitioners, believes that employees will be more likely to exercise their rights if they have a better understanding of those rights.
The social media frenzy has thrust the Board into the limelight recently because of allegations that employers have terminated employees in violation of the NLRA due to online commentary. The NLRB has found that some of the actions taken by employers crossed the line and interfered the employee’s right to engage in “protected concerted activity for mutual benefit and protection.” This issue usually arises when an employee makes a statement on Facebook or another social media site complaining about a workplace issue, fellow employees comment on the statement or action, the employer learns of the statement and immediately terminates the employee. Depending upon the circumstances, the NLRB may find the termination was unlawful and work out an agreement with the employer to right the wrongful action.
Specifically, the NLRB wants employees to know that Section 7 of the NLRA gives them the right to: 1)self organization, 2) join or assist labor organizations; 3) bargain collectively through representatives of their own choosing 4) engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection and 5) refrain from any or all such activities. The Board will provide copies of postings free of charge to employers at their request.
Posting notices of employee rights is not new. In fact, the NLRB relied on this fact as background information to require the posting. Currently employers must post notices advising employees of protection against discrimination and retaliation under State and Federal law as well as how to file complaints of discrimination. The Department of Labor requires employers to post information about the Fair Labor Standards Act, the Family Medical Leave Act, the Uniformed Services Employment and Reemployment Rights Act (USERRA) Information, and OSHA, among others. The State of Florida requires employers to post information about workers compensation, Florida minimum wages, and information from the Florida Department of Revenue. Employers who communicate changes to employees using electronic methods must use those same methods to communicate the NLRA information. This new requirement simply adds to the list.
Employers may experience a flurry of activity when the posting goes up because employees may mistakenly equate the new posting with new rights. However, the printers making the posters are likely to place this notice in the midst of the other laws and employees may not take particular notice unless employers make a big deal about the change. Furthermore, federal contractors have been under this posting requirement since mid 2010. Employers who fail to post the notice may find themselves facing an unfair labor practice charge because such failure may amount to an interference with an employee’s rights under the NLRA Employers may also waive their right to raise a statute of limitations argument if a petition to unionize is untimely filed and the employer failed to post the required notice.
What should an employer do? Comply by posting the required notice. Between now and November 14, the employer must 1) ensure there are adequate policies in place to prohibit unlawful solicitation in the event unions come knocking at the door; 2) update communication information to employees about employee benefits and other perquisites; 3) TRAIN supervisors so that the supervisors do not promise, interrogate, threaten or spy on employees if a supervisor hears a buzz of interest around the union issue. If the employer is unfamiliar with unions, they should contact a labor attorney for assistance. The NLRB website (www.nlrb.gov) contains additional information and the final rule.