In October 2011, Paul Hastings released a Stay Current regarding a recently enacted rule by the National Labor Relations Board (NLRB or Board) that would require private sector employers (whether unionized or union-free) subject to the National Labor Relations Act (NLRA) to post a notice designed to inform employees of their rights under the NLRA, including their right to unionize and bargain collectively. Due to mounting criticism as well as lawsuits filed by the National Association of Manufacturers, the Coalition for a Democratic Workplace, the National Right to Work Legal Defense and Education Foundation, the U.S. Chamber of Commerce, and the National Federation of Independent Business, arguing that the NLRB had overstepped its statutory authority, the Board subsequently pushed the effective date of the rule to January 31, 2012.
Now, the NLRB has delayed that posting, once again, to April 30, 2012. The reason for the delay is an ultimatum from U.S. District Court Judge Amy Berman Jackson who is presiding over the consolidated cases challenging the rule in the U.S. District Court for the District of Columbia. Judge Jackson, still considering cross-motions for summary judgment in that case, informed the Boards attorneys that the NLRB would either have to postpone the effective date once again or she would enjoin the Board from implementing the rule. The Board, stating that the postponement would facilitate the resolution of legal challenges that have been filed with respect to the rule, complied with Judge Jacksons demand and pushed the effective date.
Depending on the outcome of the currently pending litigation, the posting requirement could be struck down, delayed once more, or could go into effect on the new effective date of April 30, 2012 as currently planned. Clients are urged to refresh their understanding of the posters requirements by referencing the Paul Hastings earlier Stay Current and to stay apprised through any future updates from the firm.