On March 2, the United States District Court for the District of Columbia issued a ruling upholding the NLRB’s employee rights poster. The ruling was issued in a lawsuit brought by the National Association of Manufacturers (NAM) to challenge the NLRB’s authority to mandate such a poster. In its ruling, the court held that the NLRB was within its authority to issue a rule requiring employers to post the employee rights notice. The court rejected NAM’s argument that the posting requirement violates employers’ free speech rights.
Although the court upheld the posting requirement, it did place some limits on the NLRB’s enforcement efforts. The court held that an employer’s failure to post the notice, in and of itself, may not be automatically deemed an unfair labor practice by the NLRB. However, an employer’s “knowing and willful” failure to post the notice may be considered as evidence supporting a finding of an unlawful motive on the part of the employer in a case alleging some other unfair labor practice by the employer.
The court also invalidated a portion of the NLRB rule providing that the statute of limitations would be tolled in unfair labor practice actions against employers who failed to post the notice. The court held that the NLRB’s effort to extend the clear six-month statute of limitations provided for in the NLRA exceeded the NLRB’s authority.
The court’s ruling in the case brought by NAM is the first ruling in one of several cases challenging the validity of the NLRB’s employee rights poster. Another ruling is expected in the near future in a lawsuit brought by the Chamber of Commerce in South Carolina. It may well be that the ruling in the NAM case will be appealed as well. Employers should stay tuned for further legal developments with respect to the notice. In the meantime, the current effective date for employer compliance is April 30, 2012. No court has halted or invalidated that posting deadline. As such, employers are advised to begin posting the employee rights notice effective April 30 barring contrary legal developments before that time.
