NLRB Issues Final Rule on Informing Employees of Their Rights Under the NLRA

The rule mandates that private-sector employers subject to the National Labor Relations Act (NLRA) post a notice informing employees of their rights under the NLRA in a “conspicuous place” readily seen by employees, and penalizes employers for non-compliance. This new obligation applies to virtually all private-sector employers, regardless of whether or not their workforces are unionized and regardless of whether they are federal contractors.

As part of the rule-making process, the Board previously posted a proposed rule for comment by outside organizations. In total, the Board accepted 7,034 comments, the majority of which opposed the proposed rule. In response to the many comments, the Board made limited modifications to the proposed rule, but left most provisions unchanged. Board Chairman Wilma Liebman and Members Mark Gaston Pearce and Craig Becker approved the final rule. Member Brian Hayes dissented and ended his written dissent by expressing his opinion that “a reviewing court will soon rescue the Board from itself and restore the law to where it was before the sorcerer's apprentice sent it askew.” Whether or not the Board has the authority to issue a rule requiring employers affirmatively to post a notice and to penalize employers who fail to do so, when the NLRA itself provides no such posting requirement or authority, will certainly be the subject of future litigation.