Wednesday, April 18, 2012

Don’t post those new NLRB notices—finally

On Monday, I reported that a South Carolina federal court had invalidated the NLRB’s attempt to force employers to post a statement of employees’ rights under the National Labor Relations Act. I cautioned that until you heard otherwise, employers should assume that April 30 was still a go for the new posting.

News moves fast in the world of labor and employment law. Yesterday, the D.C. Circuit [order, pdf] enjoined the whole shebang until the issues can work their way through the appellate courts:

We note that the Board postponed operation of the rule during the pendency of the district court proceedings in order to give the district court an opportunity to consider the legal merits before the rule took effect. That postponement is in some tension with the Board’s current argument that the rule should take effect during the pendency of this court’s proceedings before this court has an opportunity to similarly consider the legal merits.…The uncertainty about enforcement counsels further in favor of temporarily preserving the status quo while this court resolves all of the issues on the merits.

Ever gracious in defeat, NLRB Chairman Mark Gaston Pearce said, "We continue to believe that requiring employers to post this notice is well within the Board’s authority, and that it provides a genuine service to employees who may not otherwise know their rights under our law."

The April 30 deadline for posting the NLRB’s employee rights notice is officially dead. It could take into next year before these issues work their way through the circuit courts, not to mention a likely appeal to the Supreme Court. By then, the NLRB could be tinted red and this whole issue could be moot. In the meantime, you’re break-room is free and clear of the NLRB’s latest mission statement.