October 7, 2011: Suits Opposing NLRB’s Employee Rights Notice Rule Result in Postponement of the Posting Requirement

On October 5, 2011, the National Labor Relations Board (“NLRB” or the “Board”) announced that it was postponing the effective date for posting its new employee rights poster from November 14, 2011 until January 31, 2012.  The Board said its decision to delay implementation of the notice-posting rule would allow “enhanced education” to employers.  The news release also stated:

The decision to extend the rollout period followed queries from    businesses and trade organizations indicating uncertainty about which businesses fall under the Board’s jurisdiction, and was made in the interest of ensuring broad voluntary compliance.  No other changes in the rule, or in the form or content of the notice, will be made.

Several business groups, such as the U.S. Chamber of Commerce, the National Association of Manufacturers (“NAM”) and the National Federation of Independent Business (“NFIB”) have brought suit against the NLRB challenging the Board’s authority to require employers to post the notice and/or impose penalties for noncompliance.  Both NFIB and NAM issued statements claiming that the real reason for the Board’s postponement decision was because they had filed motions for preliminary injunctions seeking to prevent the rule from taking effect on November 14, 2011.

Ultimately, these lawsuits may be successful in blocking implementation of the notice-posting rule.  The business groups have raised statutory and constitutional challenges to the Board’s action.  In at least one case, the United States District Court for the District of Columbia promised to render a decision regarding the Board’s rule before the new January 31, 2012 implementation date.

Kruchko and Fries will monitor all the lawsuits challenging the Board’s employee rights notice rule and will alert you as to any future developments.

About Kruchko & Fries:

Kruchko & Fries is committed to an intensive employment law practice limited to the representation of management in all phases of labor, employment and benefits law, equal employment opportunity law, wage and hour law, occupational safety and health law, and related litigation.  Our Firm’s practice is concentrated in Maryland, Pennsylvania, Virginia and Washington, D.C.; however, our clients are located throughout the country.

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