Court Enjoins NLRB from Enforcing Employee Posting Requirement

A federal circuit court blocked the National Labor Relations Board's ("NLRB") rule, slated to take effect on April 30, 2012, that would force most employers to post a notice of employee rights. In National Associations of Manufacturers v. NLRB, No. 12-5068 (D.C. Cir. April 17, 2012), the Court of Appeals for the District of Columbia granted an injunction barring the NLRB from requiring employers to post the notice, pending the final outcome of the case. The court also expedited the briefing schedule and will hear oral argument in September 2012.

In the National Associations case, the district court ruled that the NLRB had the authority to require employers to post the notice, but added that the NLRB exceeded its authority by stating that it would automatically treat a failure to post the notice as an unfair labor practice or as grounds for tolling the statute of limitations. Instead, the district court ruled that the NLRB must make individual determinations as to whether a failure to post the notice constitutes "interference" with employee rights in violation of Section 8(a)(1) of the Act, or otherwise warrants tolling the statute of limitations. See our advisory dated March 8, 2012.

Notably, in another case addressing the very same issue, the district court ruled that, "[b]ased on the plain language and structure of the Act, the court finds that the Board lacks authority under Section 6 to promulgate the notice posting rule." Chamber of Commerce of the United States, et al. v. NLRB, No. 2:11-cv-02516 (D.S.C. April 13, 2012).

Accordingly, at this point, there is no consensus among the lower courts regarding the NLRB's authority to require employers to post the employee notice. Nonetheless, given the injunction the court of appeals issued in the National Associations case, employers need not post the notice, at least not until after the Court of Appeals issues a final decision later this year.