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Legal Update for Employers: Court Upholds NLRB Posting Requirement


March 14, 2012
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On March 2, the U.S. District Court for the District of Columbia upheld most of the provisions of the National Labor Relations Board’s (“the Board”) new posting requirement. As we mentioned in a previous post, the regulation would require employers in New York and New Jersey  to post notices informing employees of their rights under federal labor law. In upholding the law, the court rejected claims by the National Association of Manufacturers, National Right to Work Legal Defense and Education Fund Inc., Coalition for a Democratic Workplace, National Federation of Independent Business, and several small businesses that the regulation was arbitrary and capricious. The court specifically noted that the National Labor Relations Act (NLRA) provides the board a “broad, express grant of rulemaking authority.” However, not all aspects of the law survived judicial scrutiny. The District Court concluded that the Board exceeded its statutory authority by classifying any failure to post the required notice as an unfair labor practice under the NLRA. It also found that a provision tolling the NLRA’s statute of limitations at a jobsite where a notice wasn’t posted was inconsistent with the language of the statute. The court did, however, find that the NLRB could pursue these remedies on a case-by-case basis. What’s Next? The posting rule is scheduled to take effect April 30 of this year. However, one party has already indicated that it will appeal the ruling, and another lawsuit is still pending in South Carolina. Therefore, we advise employers to stay tuned for further updates. If you would like to know how the new posting requirement and other regulatory changes might impact your compliance obligations, it is advisable to consult with an experienced New York and New Jersey employment lawyer at the number above.