Second Appeals Court Strikes NLRB Union Poster Rule

The U.S. Circuit Court of Appeals for the Fourth Circuit rejected a National Labor Relations Board (NLRB) rule requiring most companies to post a notice informing employees of their union rights. The court held that the posting requirement is unenforceable. This is the second federal appellate court to invalidate the requirement in the past two months.

The controversial poster rule required most private-sector employers to put up an NLRB-created workplace poster entitled, “Employee Rights Under the National Labor Relations Act.” The poster generally informs employees of their rights to organize a union, bargain collectively through representatives chosen by the employees and make efforts to improve the terms and conditions of their employment.

The posting requirement was initially scheduled for implementation in November of 2011. That deadline was first delayed until April 30, 2012, and then put on hold indefinitely pending the outcome of legal challenges.

This challenge was brought by the U.S. Chamber of Commerce and the local South Carolina Chamber of Commerce. The Fourth Circuit’s decision directly questions the NLRB’s rulemaking authority.

The case is Chamber of Commerce v. National Labor Relations Board, 12-01757, U.S. Court of Appeals for the Fourth Circuit.

No Power to Require a Poster

The Fourth Circuit ruled that there was nothing in the National Labor Relations Act (NLRA) that gave the NLRB power to require the posting of notices. Although Congress gave other agencies, such as the Department of Labor, the explicit power to require notices, it never granted the NLRB power to do so.

“Had Congress intended to grant the NLRB the power to require the posting of employee rights notices, it could have amended the NLRA to do so,” U.S. Circuit Judge Allyson Duncan wrote for the Fourth Circuit.

No “Carte Blanche” Authority

The Fourth Circuit also ruled that the NLRB’s powers are limited to reacting to unfair labor practices and conducting representation elections upon request — the NLRB does not have proactive rulemaking powers.

“We agree with the district court that the rulemaking function provided for in the NLRA, by its express terms, only empowers the board to carry out its statutorily defined reactive roles in addressing unfair labor practice charges and conducting representation elections upon request,” the Fourth Circuit said. “Indeed, there is no function or responsibility of the board not predicated upon the filing of an unfair labor practice charge or a representation petition.”

The U.S. Chamber of Commerce’s Chief Counsel for Regulatory Litigation, Rachel Brand, told Thomson Reuters that the U.S. Chamber was pleased with the result and the court’s reasoning.

“The board has a reactive authority, not a carte blanche regulatory authority,” Brand said.

D.C. Circuit Rejected Poster on Free Speech Grounds

Last month, the D.C. Circuit also struck down the poster rule. The D.C. Circuit reasoned that the rule violated free speech rights. Judge Raymond Randolph noted that federal law protects “the rights of employers (and unions) not to speak” and that the poster rule was “compelled speech.”

The D.C. Circuit did not reach the issue of the NLRB’s rulemaking authority.

The NLRB has statutory jurisdiction over private sector employers whose activity in interstate commerce exceeds a minimal level.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

Payday Notice

Did you know that you must post a notice that shows the day, time and location of the regular payday in your workplace?

As a convenience, the state provides a small form for this purpose. However, it is satisfactory to post this information in any understandable form.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

The payday notice is included as part of CalChamber’s California and Federal Employment Notices Poster. This poster contains mandatory updates for 2013.

NLRB Union Poster Rule Struck Down By Appeals Court

A federal Court of Appeals struck down a National Labor Relations Board (NLRB) rule requiring most companies to post a notice informing employees of their union rights.

The controversial poster rule required most private-sector employers to put up NLRB-created workplace posters entitled, “Employee Rights Under the National Labor Relations Act.” The poster generally informs employees of their rights to organize a union, bargain collectively through representatives chosen by the employees and to make efforts to improve the terms and conditions of their employment.

A three-judge panel for the U.S. Court of Appeals for the District of Columbia said the NLRB violated employers’ free speech rights and overstepped its legal authority. Judge Raymond Randolph noted that federal law protects “the rights of employers (and unions) not to speak” and that the poster rule was “compelled speech.”

The rule, according to the federal court, treats the failure to post the NLRA notice “as evidence of anti-union animus in cases involving, for example, unlawfully motivated firings or refusals to hire — in other words, because it treats such a failure as evidence of an unfair labor practice.”

The posting requirement was initially scheduled for implementation in November of 2011. That deadline was first delayed until April 30, 2012, and then put on hold indefinitely pending the outcome of legal challenges.

This particular challenge was brought by the National Association of Manufacturers (NAM) and other business groups.

“Today, manufacturers claim an important victory in the fight against an activist NLRB and its aggressive agenda,” said NAM President and CEO Jay Timmons, in a statement. “The poster rule is a prime example of a government agency that seeks to fundamentally change the way employers and employees communicate. The ultimate result of the NLRB’s intrusion would be to create hostile work environments where none exist.”

In a separate lawsuit, a federal trial court in South Carolina also concluded in April 2012 that the NLRB lacked the authority to promulgate the posting rule. The NLRB challenged the decision and the case is pending before the U.S. Court of Appeals for the Fourth Circuit. The appeal was heard in March 2013.

The NLRB has statutory jurisdiction over private sector employers whose activity in interstate commerce exceeds a minimal level.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

April 1, 2013, Deadline: Human Trafficking Posting Required for Some Businesses

Senate Bill 1193, passed last year, requires specified businesses and establishments to post an 8.5” x 11” notice, on or before April 1, 2013.

The required posting provides important information on how to report suspected human trafficking and also provides victims of human trafficking with information on where to obtain help. The notice informs the public and victims of human trafficking of telephone hotline numbers and contains information about organizations that provide services to eliminate slavery and human trafficking.

The State of California Department of Justice (DOJ) developed the model notice that complies with the requirements of SB 1193.

California “is one of the nation’s top four destination states for trafficking human beings,” according to the DOJ. Human trafficking, as the DOJ states, is “a modern form of slavery. It involves controlling a person through force, fraud, or coercion to exploit the victim for forced labor, sexual exploitation or both.”

Applies Only to Specified Businesses and Establishments

Only specific businesses, including, but not limited to, farm labor contractors, bus stations and truck stops, must comply. The list of businesses required to post the notice is available on HRCalifornia and also on the DOJ’s human trafficking website. 

The notice must be posted in English, Spanish and one other language that is the most widely spoken language in the county where the business is located (and for which translation is mandated by the Voting Rights Act). The Attorney General provided a list of counties in which a third language other than English and Spanish is the most widely spoken language and has also provided additional translations of the model notice.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

HRCalifornia is updated with both the English and Spanish versions of this notice, and is also updated with additional details on the posting requirements.

March 8 FMLA Posting Mandatory for Some Public, Private Employers

HRWatchdog previously reported that the U.S. Department of Labor (DOL) issued important new regulations expanding federal Family and Medical Leave Act (FMLA) protections.

The new regulations require a mandatory change to the federal FMLA poster entitled Employee Rights and Responsibilities Under the Family and Medical Leave Act. This is “Notice C” on CalChamber’s California and Federal Employment Notices Poster.

To clarify any confusion employers may have, the new FMLA regulations (and the FMLA posting requirement) do not affect you if you are a private-sector employer with less than 50 employees.

The FMLA applies only to the following covered employers:

• Private-sector employers, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer;
• Public agencies, including a local, state or federal government agency, regardless of the number of employees; or
• Public or private elementary or secondary schools, regardless of the number of employees.

All covered employers must display the poster prepared by the DOL summarizing the major provisions of the FMLA and telling employees how to file a complaint. The poster must be displayed in a conspicuous place where employees and applicants for employment can see it. A poster must be displayed at all locations even if there are no eligible employees. CalChamber’s California and Federal Employment Notices Poster contains this federal notice, along with the other notices required for California employers.

The regulations do not take effect until March 8, 2013 — 30 days after the publication of the final rule. The new poster has a revision date of February 2013. However, the DOL specifically noted that employers may either start using the new poster immediately or may use the old FMLA poster through March 7, 2013.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

HRCalifornia will be updated on March 8 to reflect the new changes to the law, including any form changes. Purchase the California and Federal Employment Notices Poster, with the revised federal FMLA notice, on the CalChamber Store.