As you have likely read in the past months, the National Labor Relations Board (the “Board”) recently adopted a new rule requiring almost all employers, including those with non-unionized workplaces, to post a Notice advising employees of certain rights provided to them under the National Labor Relations Act (the “Act”). There was considerable controversy surrounding the new rule, and several postponements of the deadline for compliance. The deadline was last extended from January 31 to April 30, 2012, and the April 30 deadline seems to be sticking. So, if you have put the requirement out of your mind given the postponements, it is time to remember them. Information to help you comply with the posting requirement, including downloadable versions of the required Notice can be found at the Board’s site. The Notice summarizes employees’ rights to negotiate the terms of their employment, form a union, engage in collective bargaining with their employer, strike and picket. Legal restrictions on certain actions by employers and unions are also listed, along with an explanation of the obligation to bargain in good faith when a union has been selected by employees.
What are the posting requirements?
- The Notice may be downloaded from the Board’s website, but it must be printed to at least 11 inches x 17 inches in size.
- The Notice must be posted in conspicuous places where notices to employees are normally posted. If employee rules and policies are customarily posted on a company’s intranet or internet site, the notice must also be posted there in full or by a link to the Board’s website where the full text of the notice is located.
- Employers must take steps to ensure the notice is not altered, defaced, or covered with other materials.
- If 20 percent of an employer’s workforce is not proficient in English, and those persons speak the same foreign language, the employer must also post the notice physically (and electronically, if applicable) in that language. The Board has provided downloadable copies of the Notice in several languages at the above-referenced website, with more to come.
What are the consequences of noncompliance?
- Failure to post the Notice may be treated as an unfair labor practice under the Act. If the Board finds the employer has failed to post, it will be ordered to cease and desist from the unlawful conduct and to post both the Notice and a remedial notice. In some cases, additional remedies may be imposed.
- Any employer that threatens or retaliates against an employee for filing charges or testifying at a hearing concerning alleged violations of the posting requirements may be found to have committed an unfair labor practice.
- Failure to post could also extend the time for employees to file unfair labor practice charges.
- A willful failure to post can further be used as evidence of an unlawful motive in an unfair labor practice case under the Act.
Who must comply?
- All employers who fall under the Board’s jurisdiction must comply. The Board’s jurisdiction is very broad, and it is hard to imagine an employer in the hospitality industry that would not come under its purview.
- There are some employers that are specifically excluded from the requirement, but none are likely to apply to hospitality industry employers.
- Federal contractors may comply with the new rule by posting notices to employees as required under the Department of Labor’s similar notice-posting rule found in 29 CFR part 471.
- Make sure to post the new notice no later than April 30, 2012.
- Provide training to your supervisors on how to respond appropriately to questions from employees about unions and union organizing activities.
If you have any questions, please contact us.
Greg Duff founded and chairs Foster Garvey’s national Hospitality, Travel & Tourism group. His practice largely focuses on operations-oriented matters faced by hospitality industry members, including sales and marketing, distribution and e-commerce, procurement and technology. Greg also serves as counsel and legal advisor to many of the hospitality industry’s associations and trade groups, including AH&LA, HFTP and HSMAI.