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eLABORate: NLRB Requires Employers To Post Unionization Rights Notices - FAQs

September 22, 2011

As a follow up to our previous eLABORate, below you will find frequently asked questions related to the final rule published by the National Labor Relations Board on August 30, 2011, that will require most private-sector employers in the country to notify employees of their rights under the National Labor Relations Act. The 11-by-17 inch notice will need to be posted in a conspicuous place no later than November 14, 2011.

The following questions apply to this new posting requirement:

How can I get copies of the Notice?

The easiest way to obtain the Notice is to download it from www.nlrb.gov/poster and print it on a single 11-by-17 paper or two 8-by-11 papers taped together. Free copies of the Notice are available on request from any NLRB regional office. Finally, employers can satisfy the rule by purchasing and posting a set of workplace posters from a commercial supplier.

Does my company have to post the notice?

The posting requirement applies to all private-sector employers within the Board's jurisdiction. This includes most private-sector employers, including labor unions, but excludes agricultural, railroad and airline employers, as well as very small employers that conduct an insufficient volume of business to have more than a slight effect on interstate commerce. 

What if my workplace is nonunion?

Employers with and without union workforces are required to post the notice because NLRA rights apply to union and non-union workplaces.

What if I operate a religiously-affiliated institution?

The Board has asserted jurisdiction over some religiously-affiliated employers in the past, but has declined to assert jurisdiction over others. Because this is a complex issue, such employers are advised to contact their Regional Office.

What if my organization is a non-profit?

Non-profit organizations are not exempted from the NLRA and are thus required to post the Notice.

What if I am a federal contractor?

Federal contractors already are required by the Department of Labor to post a similar notice of employee rights. A contractor will be regarded as complying with the Board's Notice posting rule if it posts the Department of Labor's notice.

What if I operate a small business?

The Board's jurisdiction extends to most small business owners. However, some very small employers whose annual volume of business is not large enough to have more than a slight effect on interstate commerce are exempted.

In the case of retail businesses, including home construction, the Board's jurisdiction covers any employer with a gross annual volume of business of $500,000 or more.

The Board's non-retail jurisdictional standard applies to most other employers. It is based on the amount of goods sold or services provided by the employer out of state (called "outflow") or goods or services purchased by the employer from out of state (called "inflow"), even indirectly. Under this standard, the Board will take jurisdiction over an employer with an annual inflow or outflow of at least $50,000.

What if my employees work at remote sites and would not see a posting in the main office?

Employers with remote worksites should post the Notice at those locations to ensure that all employees are notified of their rights.

What if I run a referral business and send employees to work at my clients' premises where I have no control over physical postings?

Employers are required to post a Notice only on their own premises or at worksites where they have the ability to post a Notice directed to their own employees.

What if I have worksites out of the country?

Employers are required to post notices at workplaces in the U.S. and its territories, but not at those in foreign countries.

Where should the Notice be posted?

The Notice should be posted in conspicuous places, where other workplace rights notices and company notices concerning personnel rules or policies are customarily posted. Reasonable steps should be taken to ensure the Notice is not altered, defaced, or covered by any other material, or otherwise rendered unreadable.

What if I communicate with employees electronically?

Employers who typically post personnel rules and policies on an internet or intranet site should also post the Notice of NLRA rights there, in addition to a physical posting. Employers are not required to distribute the posting by email, Twitter or other electronic means.

Many of my employees speak a language other than English. Will I still have to post the Notice?

Yes. The Notice must be posted in English and in another language if at least 20% of employees are not proficient in English and speak the other language. The Board will provide translations of the Notice, and of the required link to the Board's website, in the appropriate languages. If a translation of the appropriate language is not available, the employer will not be liable for non-compliance.

If a workforce includes two or more groups, each constituting at least 20 percent of the workforce, who speak different languages, the employer must post the Notice in the language spoken by the larger group, and then may either post the Notice in the language(s) spoken by the other group(s) or, at the employer's option, distribute copies of the Notice to those employees in their language(s). If such an employer is also required to post the Notice electronically, it must do so in each of those languages.

Will I have to maintain records or submit reports under the Board's rule?

No, the rule has no record-keeping or reporting requirements.

What will be the consequences for failing to post the Notice?

The NLRB does not audit workplaces or initiate enforcement actions on its own. A failure to post the Notice would need to be brought to the Board's attention in the form of an unfair labor practice charge by employees, unions, or other persons. In most cases, the Board expects that employers who fail to post the Notice were unaware of the rule and will comply when requested by a Board agent. In such cases, the unfair labor practice case will typically be closed without further action. The Board also may extend the 6-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer.

If an employer knowingly and willfully fails to post the Notice, that failure may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.