The NLRB recently published a final regulation requiring all employers subject to the National Labor Relations Act to post a Notice of Rights Poster by November 14, 2011. Citing reported “confusion” by businesses as to whether they fall under the NLRB’s jurisdiction, the NLRB has now announced a postponement of the implementation of the posting requirement until January 31, 2012. The NLRB’s announcement states that its decision to delay implementation “was made in the interest of ensuring broad voluntary compliance”. It is possible the NLRB had other motivations.

First, the NLRB’s position is that, with very limited exceptions, all private sector employers are subject to its jurisdiction and must post the notice. The NLRB’s announcement does not explain if or why it is now reconsidering this position.

Second, as mentioned in our September 15 news alert, three lawsuits were filed by business trade groups seeking to enjoin implementation of the posting requirement. All three lawsuits challenge the NLRB’s authority to issue the final regulation requiring the notice – a concern voiced by one of the NLRB’s own (dissenting) members, as discussed in our September 1, 2011 news alert. The judge in one of these lawsuits asked the NLRB to delay implementation of the posting requirement to give her time to consider the arguments in detail. The NLRB initially declined, but later agreed when the Judge asked the NLRB to “reconsider”.

What to do? Nothing for now. The poster is available on the NLRB website if and when the NLRB is allowed to require its posting.