Updated: Court Temporarily Stops the NLRB from Enforcing Poster Requirement

The Court of Appeals for the D.C. Circuit granted the request of the National Association of Manufacturers (NAM) to temporarily stop the National Labor Relations Board (NLRB) from enacting its notice-posting rule.

Employers will not have to meet the April 30 implementation deadline. 

*UPDATE* In response to the court's ruling, NLRB Chairman Mark Gaston Pearce announced that: “In view of the DC Circuit's order, and in light of the strong interest in the uniform implementation and administration of agency rules, regional offices will not implement the rule pending the resolution of the issues before the court.” 

In March, a federal district court for the District of Columbia generally upheld the validity of the posting requirement rule. NAM appealed the decision. NAM then asked the court to stop the NLRB from implementing the poster requirement while its appeal was pending. Today, the court agreed to grant this temporary injunction.

On April 13, HR Watchdog reported that a federal district court in South Carolina ruled that the National Labor Relations Act posting requirement is unlawful. Employers nationwide are presented with two federal decisions that are in conflict with each other. 

Given the uncertainty caused by the conflict in opinions, this injunction is welcome news.

Employers who purchased poster products from CalChamber can rest assured that their poster set will continue to work for them. CalChamber offers its members a two-poster set that contains the NLRA notice separate from the other legally mandated notices in the California and Federal Employment Notices Poster. Employers should continue to post the all-in-one poster that contains the 16 required California and federal notices for 2012. 

HRWatchdog will continue to keep you updated on the status of the NLRA poster requirement.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel 

Federal District Court: New NLRA Poster Requirement Unlawful

A federal district court just ruled that the new National Labor Relations Act posting requirement is unlawful. At the present time, it is unclear what the effect of this ruling is on the April 30 posting deadline. HR Watchdog will be updating you as soon as possible on the effect of this ruling for California employers.

Last year, the National Labor Relations Board (NLRB) promulgated a rule requiring most private sector employers to post a notice informing employees of their rights under the NLRA. The rule was set to take effect on April 30, 2012.

The U.S. Chamber of Commerce challenged the rule as an unlawful exercise of the NLRB’s authority.

A federal district court in South Carolina agreed, ruling that the NLRB exceeded its authority in violation of the federal Administrative Procedure Act (APA): “The court finds that the Board lacks the authority to promulgate the notice-posting rule. As such, the rule is unlawful under the APA … .” 

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

Labor Commissioner Releases Updated Wage Notice and FAQ

Today is a big news day in the employment law world.

First, the California Supreme Court released its decision in Brinker Restaurant Corp. v. Superior Court (check our blog post for a summary). Then, California's Division of Labor Standards Enforcement (DLSE) released an updated wage and employment notice “Notice to Employee (Labor Code section 2810.5)” and a second update to its FAQ on the wage and employment notice

As California employers know, the Wage Theft Protection Act of 2011 requires employers to provide nonexempt employees with a new notice at the time of hire that lists specified wage information. California employers struggled with putting the provisions of the law into effect.

The Labor Commissioner issued the first update to its “Frequently Asked Questions (FAQ) Wage Theft Protection Act of 2011 - Notice to Employees” in late January to help answer questions from employers. The second update to the FAQ revises several of the previous FAQs and also contains five additional questions and answers.

For new hires made after the posting of the updated template on the DLSE’s website, the newer posted version of the template must be used. The DLSE will archive any earlier template on its website for informational purposes.     

The updated wage and employment notice is available for download from HRCalifornia. The English version is now available. The Spanish version of the form is being translated by the DLSE and will be posted to HRCalifornia as soon as the form is available.

Need help trying to sort all this out? You’re in luck: CalChamber’s employment law experts will be conducting a live Paying and Scheduling Nonexempt Employees webinar on April 19, 2012.

April 30 NLRA Poster Deadline Approaches

The National Labor Relations Act (NLRA) posting deadline of April 30 is looming. This deadline has not changed even though there is a court case pending that is seeking to strike down this posting requirement.  

Employers must comply with the deadline unless the court rules otherwise. At this point, the court has not ruled and therefore the deadline stands.

Effective April 30, most private-sector employers must post the new notice issued by the NLRB entitled, “Employee Rights Under the National Labor Relations Act.” Certain industries, such as agriculture, airlines and railroads, as well as some small businesses, are exempt from the NLRA notice requirement.

CalChamber is now selling a convenient all-in-one California and Federal Employment Notices poster with all 17 required California and federal notices for 2012, including the mandatory NLRA notice.

For more information on this mandatory update, download CalChamber’s Q&A document.

Update on First Federal Court Ruling on NLRA Poster Requirement

**UPDATE: On March 5, 2012, NAM filed a notice of appeal challenging the adverse decisions on the posting requirement of the rule while the appeal is pending.**

Today, a federal district court for the District of Columbia issued a decision in a lawsuit brought by the National Association of Manufacturers (NAM) challenging the new NLRA posting requirement. The court upheld the posting requirement, but struck down some of the enforcement provisions relating to the new rule.

As previously reported, the National Labor Relations Board (NLRB) decided to require most private-sector employers to post a new notice entitled "Employee Rights Under the National Labor Relations Act." NAM challenged the posting requirement on multiple legal grounds, including arguments that the posting requirement exceeded the NLRB’s authority under the NLRA and that the requirement violated employers’ First Amendment free speech rights.

In the first decision on this issue, the federal court issued a split decision upholding part of the new rule, while overturning other provisions. The court ruled that: 

• The notice posting requirement is legally valid: The NLRB “lawfully promulgated” its rule requiring employers to post a notice of employee rights. The court did not find that Congress intended to preclude the NLRB from promulgating a rule that requires employers to post a notice informing employees of their rights under the NLRA. Moreover, the workplace notice does not violate employers’ free speech rights.

• Two enforcement provisions of the new rule are “invalid as a matter of law”: (1) The provision that states that a failure to post the notice is an unfair labor practice; and (2) the provision that tolls the statute of limitations in unfair labor practice actions against employers who failed to post the notice.

The court ruled that failure to post the notice is not by itself an act of interference or obstruction by the employer and, thus, is not alone an unfair labor practice violation. However, the court did not rule out the possibility that failure to post could be considered and used as evidence of an unfair labor practice:

“[N]othing in this decision prevents the Board from finding that a failure to post constitutes an unfair labor practice in any individual case brought before it. But the ruling does mean that the Board must make a specific finding based on the facts and circumstances in the individual case before it that the failure to post interfered with the employee’s exercise of his or her rights. ”

It is likely that this federal district court decision will be appealed. Moreover, there remains a pending legal challenge brought by the U.S. Chamber of Commerce in a federal district court in South Carolina.  That case was heard on February 6, 2012, and a decision is expected shortly.

What does this all mean? The requirement to post the new employee rights notice is still valid. The decision has not halted the current implementation status. As of right now, the current required posting date is April 30, 2012. Though this decision knocked some teeth out of the NLRB’s enforcement mechanism, failure to post can still be evidence in an unfair labor practice charge.

Employers need to stay tuned for further information as these legal challenges continue to wind their way through the courts. CalChamber prepared a National Labor Relations Act (NLRA) Poster Questions and Answers Document to address many anticipated questions regarding the scope of the rule.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

Order CalChamber's California and Federal Employment Notices Poster, which includes the new NLRA notice.