CALIFORNIA -- The National Labor Relations Board has postponed the effective date of its employee rights notice-posting rule until April 30, 2012.

Most private-sector employers must post a new notice issued by the NLRB entitled, "Employee Rights Under the National Labor Relations Act." This poster requirement was scheduled to be implemented on Jan. 31, 2012, but on Dec. 23, 2011 the NLRB delayed implementation in response to a request by a federal court judge hearing a legal challenge to the poster requirement. The National Association of Manufacturers has challenged the National Labor Relations Act (NLRA) poster requirement on multiple grounds. This is the second time that the NLRB has delayed implementation. Because this issue remains in litigation, there is a chance that this posting deadline will be delayed one more time.

The NLRA was enacted in 1935 and regulates most private sector labor-management relations in the United States. The NLRA excludes agricultural, railroad and airline employers. Certain small businesses may be excluded if they are not under the NLRB’s jurisdiction. In addition, the NLRB has agreed to exempt the U.S. Postal Service from the new posting requirement.

In justifying the new requirement, the NLRB states that “many employees protected by the NLRA are unaware of their rights under the statute” and that the requirement to post the notice “will increase knowledge of the NLRA among employees, in order to better enable the exercise of rights under the statute.”

The poster must be placed in a conspicuous place readily seen by employees. Employers must post the notice on an intranet or Internet site if personnel rules and policies are customarily posted there. Requirements for printing the poster in languages other than English if more than 20 percent of employees speak that other language also are detailed.

The notice is similar to one the U.S. Department of Labor requires for federal contractors. Text of the notice included as an appendix to the final NLRB rule states, among other points, that employees have the right to:

-- Organize a union to negotiate with their employer about wages, hours and working conditions;  

form, join or assist a union;  

-- Bargain collectively with their employer;  

discuss wages and benefits and other terms of conditions of employment or union organizing with co-workers or a union;  

-- Strike and picket, depending on the purpose or means of the strike or the picketing; and  

choose not to do any of these activities, including joining or remaining a member of a union.

The notice provides examples of unlawful employer and union conduct and tells employees how to contact the NLRB with any questions.

Some very small employers will not be subject to the notice requirement because they are not under the NLRB’s jurisdiction.

The NLRB does not exercise jurisdiction over small businesses whose annual volume of business has only a slight effect on interstate commerce. The NLRB generally applies two standards to determine if it has jurisdiction:

-- The retail standard, including home construction. The NLRB will take jurisdiction over any such employer with a gross annual volume of business of $500,000 or more.  

-- The non-retail standard, which applies to most other employers. It is based on the amount of goods sold or services provided by the employer out of state (“outflow”) or goods or services purchased by the employer from out of state (“inflow”). The NLRB will take jurisdiction over any employer with an annual inflow or outflow of at least $50,000.

Small businesses that are unsure if they are under the NLRB’s jurisdiction and subject to the poster requirement should consult with labor counsel.

A questions-and-answers sheet about the “Employee Rights under the NLRA” poster requirement is available on HRCalifornia as part of the HRWatchdog blog....

For more information go to calchamber.org.