Appellate Court Temporarily Pulls The NLRB’s Employee Rights Notice

The federal appeals court for the District of Columbia Circuit (“D.C. Circuit”) recently enjoined the National Labor Relations Board (“NLRB” or “Board”) from enforcing its employee rights notice rule. The Board had issued regulations in 2011 that required employers to post the Board’s Employee Rights Notice in their workplaces by April 30, 2012. Several business organizations, including the United States Chamber of Commerce (“Chamber”) and National Association of Manufacturers (“Association”), among others, filed lawsuits challenging the NLRB’s authority to adopt the Employee Rights Notice rule. They based their challenges primarily on the absence of any specific statutory authorizations for the Board to require employers to post the notice.

On March 2, 2012, a federal trial court in the District of Columbia partially upheld the Board’s rule. It recognized the NLRB’s inherent authority, as the agency with the statutory responsibility to enforce the National Labor Relations Act (“NLRA”), to require employers to post the employee rights notice. The court, however, denied the Board’s authority to impose automatic liability for an unfair labor practice on employers that failed to post the notice. It further nullified the rule’s suspension of the NLRA’s six-month statute of limitations for unfair labor practices for the failure to display the employee rights notice. The Association appealed the district court’s ruling to the D.C. Circuit. It further asked the appellate court to enjoin the NLRB from enforcing its employee notice rule.

Meanwhile, on April 13, 2012, a federal district court in South Carolina decided the Chamber’s challenge to the NLRB’s notice of employee rights posting rule. It rejected the rule, finding that the Board lacked the statutory authority to issue the rule.

Four days later, on April 17, 2012, the D. C. Circuit granted the Association’s request for an injunction.  It delays the effective date for the Board’s employee rights posting notice rule, pending the appeal’s outcome. Therefore, employers have no duty to post the NLRB’s employee rights notice by April 30, 2012. 

At least until the D.C. Circuit decides this appeal, Employers have no obligation to post the NLRB’s employee rights poster.  Technically speaking, the D. C. Circuit’s jurisdiction only covers Washington, D.C.  The NLRB, however, has issued a notice that it will take no action to enforce the employee posting notice until after the D. C. Circuit decides the Association’s appeal. Thus, employers have yet to hear the last word as to whether they must post the NLRB’s employee rights notice. Given the rate at which appellate courts decide cases, they have, at least, a temporary reprieve for the next ten months, or so.