NLRB Makes It Official: One More Labor Poster on the Wall

The National Labor Relations Board has issued the final version of a rule requiring employers to notify workers of their rights under the National Labor Relations Act. This rule proposal made news this past winter, because up until now, the NLRB hasn’t been in the business of issuing rules at all.

By thezenderagenda.com

Here’s the long and short of it: Beginning November 14, 2011, if you employ people – at all – you will be required to put up an 11×17 poster that tells your employees that they have the right to organize, bargain collectively, and engage in protected concerted activity, and provides the number to the NLRB to report any violation of their rights. The poster will also tell them they have the right not to join a union, too. Just to make it fair.1

The poster will be made available in other languages, and if 20% of your workforce speaks another language, you’ll need that poster, as well.

Oh, and if you regularly post notices to your employees on an intranet, the notice(s) will have to appear there, too.

Actually, all that’s just the “short” of it. The “long” would have to apply to the final rule as it appears in the Code of Federal Regulations, which is nearly 200 pages long. Most of it is response to the comments from business groups who opposed the rule – and the Board’s rulemaking at all – during the lead up to today’s issuance2.

And it really does apply to everybody, folks. From the NLRB’s announcement:

There is no union in my workplace; will I still have to post the notice?

Yes. Because NLRA rights apply to union and non-union workplaces, all employers subject to the Board’s jurisdiction (aside from the USPS) will be required to post the notice.

I am a federal contractor. Will I have to post the notice?

The Board’s notice posting rule will apply to federal contractors, who already are required by the Department of Labor to post a similar notice of employee rights. A contractor will be regarded as complying with the Board’s notice posting rule if it posts the Department of Labor’s notice.

I operate a small business. Will I have to post the Board’s notice?

The rule applies to all employers subject to the Board’s jurisdiction, other than the U.S. Postal Service. The Board has chosen not to assert its jurisdiction over very small employers whose annual volume of business is not large enough to have a more than a slight effect on interstate commerce. The jurisdictional standards are summarized in the rule.

Failure to post the notice will be considered an unfair labor practice. While the Board can’t impose fines for failing to put up the poster, it can extend the statute of limitations for filing charges if an employee claims he didn’t know his rights because the poster was missing.

If you’re looking for a silver lining in all of this, here’s one I found in the thick of the final rule: originally, employers who regularly addressed their workforce via email would have to notify all employees by email as well. The Board eliminated that requirement, noting how confusing and repetitive it would be to re-send the notice to everyone any time a new person was hired. The required wording for the link to the intranet posting, which originally read “Important Notice about Employees Rights to Organize and Bargain Collectively with Their Employers” has also been changed to “Employee Rights under the National Labor Relations Act.”3

(ht Jon Hyman)

1. Commercial posters that include the information are also acceptable. [↩]
2. From a quick glance, it looks like the actual rule starts at about page 175 [↩]
3. Thanks, Baker and McKenzie! [↩]

Mass Layoffs in Illinois: The Basics

Before our kids were born, my wife worked at an ad agency here in Chicago. Last month, the agency she worked for lost its biggest account1. Last week, the layoffs came: 100+ employees in the Chicago office, roughly 3% of the company’s worldwide staff, according to news reports. It’s a brutal cut.

Notably, this particular incident wasn’t a product of the recession or the global economy or anything like that. From the looks of things, it was a simple corporate falling out.2 These two companies had worked together for decades, and one of them decided it was time to move on. Which is a good reminder to us all: these things happen. Regardless of the market forecast, accounts can be lost, and adjustments have to be made.

My heart goes out to those whose reality has changed. God knows I know what it’s like. My mind, on the other hand – which for better or worse views the world through Labor & Employment-colored glasses – thinks maybe its time we talk about what to do when you’ve got to let a lot of people go.

There’s a lot of ground to cover, so today’s post is going to just go over the basics of what the laws require. Future posts this and next week will discuss more specifics: what goes in the notice(s), exceptions to these requirements, how to calculate when the notice should be given, etc.

Continue reading »

1. The account she worked on, incidentally [↩]
2. Ok, it is advertising, so there was actually a lot of drama involved, but none of it related to the recession. [↩]

Zapping the Fair Labor Standards Act

There’s a super-sized question floating around L&E blawgs right now, posed by Walter Olson at Overlawyered.com, that goes something like this:

If you could press a button and instantly vaporize one sector of employment law, what would it be?

Walter, in an article on Reason.com about promoting job growth, picked age discrimination. I, for one, want to be on Jon Hyman‘s superhero team.

Jon picked the Fair Labor Standards Act.

Jon’s reason was that it is essentially actually impossible to be in full compliance with the hedge-maze of regulations set up under the FLSA. He’s right, of course, but like all superheroes, my reasons for doing away with our shared nemesis are my own.

I think the FLSA is one of the most outdated laws in the Federal Lexicon. It’s not surprising. By my count, the way Americans think of work has fundamentally shifted at least three times since I was born. The FLSA – a law whose sole purpose is to protect the American workforce – is almost 80 years old. That’s where all those byzantine regulations came from. Some really smart businessperson came up with a new way to interact with their employees1, and the FLSA people2 had to figure out what the FLSA said about whatever that novel idea was. So they jury rigged the old law to fit the new system of work – cramming workers into classifications that didn’t really fit.  Multiply that by every innovative workforce procedure for the past 80 years, and you can understand why employers feel so squeezed.

Now, we’ve got news articles and pundits galore telling us that the future is an independent workforce – full of freelancers and mobile offices and microdistributors – and we’re still going to try and use this 1930′s regulatory model? That is a crisis that needs heroes.

Now where did I leave that spandex?

1. you know, like, intra-office telephones [↩]
2. that means the DOL [↩]