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Fresenius USA Manufacturing, Inc.- Forcing Employers to Navigate the crossroads of workplace harassment & the NLRA
Properly navigating workplace harassment laws is a tricky endeavor for any company. A recent decision from the National Labor Relations Board (NLRB) in Fresenius USA Manufacturing, Inc. (September 19, 2012) makes employers’ obligations in this arena even more uncertain.
In Fresenius,Kevin Grosso, a pro-union employee, made several anonymous written comments in an Fresenius employee break room, apparently in an attempt to sway warehouse workers to vote against an ongoing union decertification campaign. After some of Grosso’s female co-workers complained to Fresenius that the comments were vulgar, offensive and threating, Fresenius investigated the comments and questioned Grosso directly, based on the fact that other employees identified his handwriting. During the investigation, Grosso inadvertently admitted responsibility for the comments, and Fresenius’ human resource manager terminated Grosso’s employment.
Following the termination, the union asserted a claim for unfair labor practices against Fresenius based on the investigation and Grosso’s termination. At trial, the NLRB Administrative Law Judge found in favor of Fresenius, ruling that both the investigation and the termination complied with the National Labor Relations Act (“NLRA”). On review, the NLRB upheld the ALJ’s ruling that the investigation, including the questioning of Grosso, was appropriate under the NLRA, based principally on Fresenius’ obligations under Federal law and its own employment policies to investigate harassing behavior. However, the NLRB found that terminating Grosso’s employment did violate the NLRA insofar as Grosso’s comments encouraged other workers to support the union and therefore constituted protected activity under Section 7 of the NLRA.
To its credit, the NLRB’s opinion acknowledged that employers have a legitimate interest in investigating complaints of misconduct, including complaints of harassment. As the NLRB was seemingly aware, such investigations are a crucial component of ensuring compliance with Federal laws (Title VII in particular) and with an employer’s own workplace anti-harassment policies. Nonetheless, the NLRB was unwilling to overcome the protections of the NLRA in this instance. The NLRB held that although otherwise protected activity may in some occasions lose protection if the language is “sufficiently opprobrious, profane, defamatory, or malicious”, the use of vulgar or profane language in the workplace does not necessarily destroy the Act’s protections. According to the NLRB, Grosso’s comments, though facially offensive to other employees, did not rise to the level necessary to avoid the protections afforded by the NLRA.
Clearly, this decision places employers in a difficult position in having to avoid liability for failing to address and prevent workplace harassment but simultaneously having to avoid running afoul of NLRA-protected activity. The NLRB’s ruling in Fresenius creates a crossroads of competing employer obligations under these two legal principles that will force employers to proceed with the utmost caution in addressing harassing conduct related to any form of union or concerted activity. Employers facing these situations should seek the guidance of their HR professional and legal counsel in order to negotiate these seemingly contradictory responsibilities.
W. Chapman Hopkins is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Hopkins concentrates his practice in litigation, with a focus on employment, business, and equine law. He is located in the firm’s Lexington office and can be reached at chopkins@mmlk.com or at (859) 231-8780.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
Will a Savings Clause Save Your Social Media Policy?
Could a savings clause salvage an otherwise invalid social media policy? Maybe. There is no definitive answer to this question, as savings clauses have been portrayed as both a potential asset for employment handbooks and a non-factor in acting as a loophole for Section 7 of the National Labor Relations Act (NLRA). Thus, it is important to view savings clauses as one tool in your arsenal and not as a panacea for an overly-broad social media policy.
A well-written savings clause is a provision added to your employment handbook as a legal catchall disclaimer that informs employees that any and all rules encompassed in the company’s social media policy do not infringe upon the rights of employees to engage in group activity that is protected by federal law – i.e., the policy is not meant to discourage the activities protected by Section 7 of the NLRA. It seems these broad disclaimers, when coupled with a broadly written policy, may not be the answer.
As we discussed in NLRB and ALJ Decisions Continue to Refine Social Media Policy Parameters earlier this week, Administrative Law Judge Clifford H. Anderson ruled against EchoStar Corporation finding their social media policy restricting employees from making critical comments illegal, even though EchoStar’s handbook did have a savings clause. Prior to the EchoStar decision, the National Labor Relations Board (NLRB) issued its first decision and order on social media policies in the Costco Wholesale Corporation’s case. The NLRB found that the policy which prohibited employees from posting damaging comments about the company or employees that would be harmful to their reputations was unlawful. Both policies were found to be too broad and could lead to impeding employees’ rights to engage in protected concerted activities, as outlined in Section 7 of the National Labor Relations Act (NLRA). The Costco policy was criticized for not only being too broad, but also for not providing specific examples of activity that would constitute a violation. Essentially both decisions pressed for more specific terms in social media policies. Where they differ is in the existence of a savings clause. Costco did not include a savings clause in their employee handbook, and the NLRB indicated a possibility that a savings clause may have neutralized the policy’s shortcomings, whereas the EchoStar’s savings clause was not enough to protect the policy.
It is fairly clear by these two rulings that a savings clause is not going to fix an already flawed social media policy. That is not to say that you should not include one in your social media policy and employee handbook. Savings clauses are helpful and important disclaimers to have in general. However, it seems that both the social media policy and the savings clause need to be detailed in addressing the intended terms of the employer. Specific language is the key. Before updating or adding a savings clause to your handbook, have it reviewed by an attorney. Make sure that your social media policy includes examples of violations and precise language, and keep abreast of the developments in policy law, as it will likely continue to change as quickly as social media itself.
Amy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or acubbage@mmlk.com.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
After-hours Supervision Policies
Do you need to have a supervisor present when associates are working after hours or on the weekends? There is no law that requires that all work be supervised. So, it is perfectly legal and acceptable to have employee’s work after hours or on the weekends on company premises. However, doing so raises some legal concerns.
First, and foremost, is the safety and security of employees without supervision at the workplace. An employer should develop policies that specifically pertain to on-premise, after-hours work. For safety reasons, the policies should spell out what type of work is permissible and what is prohibited. In high-risk environments it is prudent to require a co-worker be present, preferably in a supervisory capacity. There are also safety limitations in low-risk environments. Every day-type of accidents from falling down stairs to suffering an injury from improper use of office equipment can be a source of liability. The geographic location of your company can factor in as well. If the neighborhood is a high-crime area, safety measures must be put in place to protect the facility and the employees from being targets and endangering their personal security. This would constitute implementing a policy that detailed an emergency procedure, company contact person and possibly a stipulation that restricted when the employee could work (i.e.; daylight hours only).
Secondly, problems with accurate timekeeping are always likely to arise. A precise practice of timekeeping should be in place to ensure that non-exempt employees are compensated accurately. This will likely follow the same procedure as a regular work day procedure. However, may need additional record keeping safeguarding against false claims.
Lastly, it is always difficult to gage whether the time spent after-hours and unsupervised is productive and efficient. A good general rule of thumb is to set specific goals or project deadlines to monitor whether or not the after-hours work is truly necessary.
These terms of employment can all be outlined within your employee manual with well-conceived policies protecting both your employees and your company. As technology invades every aspect of work and the workplace moves towards 24/7 access and mobility, the need to work on-premises after-hours has declined. However, there are also pitfalls of a mobile workforce. Join me on Friday as we explore, Smart Phones – 24/7 Access: When are employees off the clock?
Cynthia L. Effinger, an Associate of the firm, joined McBrayer, McGinnis, Leslie & Kirkland, PLLC in 2012. Ms. Effinger has a broad range of legal experience gained through 13 years of practice throughout the Commonwealth of Kentucky where her clients conduct business. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. She also has experience with First Amendment litigation, securities litigation and complex litigation. Ms. Effinger can be reached at ceffinger@mmlk.com or at (502) 327-5400, ext. 316.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
Essentials for Social Media Policies: Surviving the NLRA
Developing a social media policy that will survive the National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 151, et. seq. while still protecting the company is a primary focus of every employer. The key is providing specific definitions or guidance as to what an employer considers inappropriate social media activity which will be regulated and that the policy does not limit protected activity. Policies cited by National Labor Relations Board (“NLRB”) Acting General Counsel, Lafe Solomon issued in three reports aimed at providing employers guidance on what are and are not permissible social media policies under the NLRA include the following:
- A media policy designed to ensure a consistent, controlled company message and which limits employee contact with the media only to the extent necessary to achieve that result, i.e. a requirement that only certain individuals can identify themselves as speaking for the company.
- A policy prohibiting use of social media to post or display comments about coworkers, supervisors or the employer that are vulgar, obscene, threatening, intimidating, bullying, harassing or a violation of specific employer discrimination or harassment policies; however, there is a fine line with such a policy and great care must be taken with drafting it so that its scope is sufficiently clear.
- A policy prohibiting disclosure of confidential and/or proprietary information where the terms “confidential” and “proprietary” are clearly defined and examples given;
There are many others, but the difference between a policy which has been blessed and one which was not by the NLRB can be frustratingly subtle, so any policy considered for adoption should be individually scrutinized.
Probably most of use, the May 30, 2012 report of the Acting General Counsel produced in its entirety a social media policy which was endorsed by the NLRB, and as such, it provides the clearest example as yet of what the NLRB views as a valid social media policy. However, that policy is likely not ideal for all employers, and based upon the evolution of the law on this issue it should not be considered the end of the story. In this changing area of the law it is vital that employers stay ever vigilant if they wish to control and/or regulate the social media activities of their employees. The free guidance provided by the NLRB should be utilized, and employers should take great care in drafting any social media policy to make sure that it does not unnecessarily or overly regulate their employees’ electronic communications. It is clear, this issue is one which will only grow in importance as social media’s role in all our daily lives continues to expand and the forums in which employees can express themselves publically continue to multiply.
There are two sides to every coin and while employers need to stay ahead of the curve with social media policies, there are also clear lines drawn for proper use of social media in the screening process. Check back on Wednesday, August 15th as Benjamin L. Riddle, associate in our Louisville office, addresses the dos and don’ts of social media in the screening process.
Luke A. Wingfield is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Wingfield concentrates his practice in employment law, insurance defense, litigation and administrative law. He is located in the firm’s Lexington office and can be reached at lwingfield@mmlk.com or at (859) 231-8780.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
The NLRB’s View On Acceptable Social Media Policies
The rise of social media, and the desire of employers to both control and police it as to their employees, has served to expose, to many for the first time, that the National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 151, et. seq. applies not just to unionized work places but to virtually all private employers of any significant size engaged in interstate commerce. Section 7 of the NLRA protects employees’ rights to engage in what is commonly referred to as “concerted protected activity” for their mutual aid and protection in both unionized and un-unionized work places. Pre-social media this activity was typically not that difficult to spot because it commonly manifested itself as two or more employees talking face-to-face about working hours, pay, work conditions, etc. If an employee was acting alone, and thus, not part of concerted activity, it was typically easy to spot as well. However, with the rise of Facebook, Twitter, YouTube and other social media outlets, what is and is not protected activity has become less clear due to the lack of clear employee interaction, and the question of what is in fact protected activity is an increasingly important question as employers struggle with what to do about employee electronic posts or communications which they do not agree with and feel merit adverse employment action. This is especially true where these communications concern what is felt to be confidential or proprietary information.
The initial reaction of many employers with the rise of social media was to simply forbid electronic posts or communications which were negative to the employer or fellow employees and to move aggressively to discipline employees whose electronic communications and/or posts they disagreed with, but such blanket prohibitions for the most part will no longer suffice and changes must be made.
Hence, the guidance of the National Labor Relations Board (“NLRB”) must increasingly be considered. The NLRB is charged with protecting the right of employees under the NLRA, and in the past two years its position as to what it views as permissible social media policies has steadily come into focus. Exceedingly broad polices which address social media have increasingly been challenged and overturned, and employers now must be ever vigilant if they want to effectively regulate the social media practices of their employees. On just June 18, 2012 the NLRB launched a website, http://www.nlrb.gov/concerted-activity, specifically focused on the issue of protected concerted activity, and even a cursory review of that web-site illustrates the NLRB’s increasing focus on social media policies and the increasing importance of this issue.
The question then becomes, where can one look to see what social media policies would potentially pass NLRB scrutiny and be NLRA compliant? Since August 18, 2011 Lafe Solomon, the Acting General Counsel for the NLRB, has issued three reports intended to specifically provide employers guidance on what are and are not permissible social media policies under the NLRA. These reports, which address and comment upon recent case developments in the context of social media, show the position of the NLRB on permissible social media polices coming into clearer and clearer focus in the past year alone to the point that specific policy language has been more or less endorsed by the NLRB. Employers should be aware of this clarifying position and potentially modify their policies to survive challenge, and employers should continue to monitor the position of the NLRB as its position on the issue of social media further sharpens over time.
While these three reports, Memorandum OM 11-74 (August 18, 2011), OM 12-31 (January 24, 2012) and OM 12-59 (May 30, 2012), only represent the opinion of NLRB’s Acting General Counsel, they are generally indicative of how the NLRB would address certain social media policies should an issue arise with them. Addressing these three reports briefly, the trend which emerges is that the NLRB will readily find a violation of the NLRA when any social media policy would “reasonably tend to chill” employees from exercising their rights under section 7 of the NLRA. Such a policy has been identified as one which merely prohibits, without explanation or definition, employee electronic communications about working conditions, pay or job performance. A policy which also globally prohibits negative public comments about the employer in all contexts will also likely not survive challenge.
We have assisted many employers with drafting social media policies and we always encourage you to have your policies reviewed by legal counsel. Check back on Friday when we discuss what should be in your social media policy, so it passes NLRA muster.
Luke A. Wingfield is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Wingfield concentrates his practice in employment law, insurance defense, litigation and administrative law. He is located in the firm’s Lexington office and can be reached at lwingfield@mmlk.com or at (859) 231-8780.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
New NLRB Report on Employer’s Social Media Policies
On May 30, 2012, General Counsel for the National Labor Relations Board (NLRB) issued a report focusing exclusively on employer social media policies for employees. The report contains seven total cases and found that six of the cases had some lawful provisions, and only one case had a social media policy that was entirely lawful. In general, social media policy provisions are unlawful where they interfere with the rights of employees under the National Labor Relations Act (NLRA), such as the right to discuss working conditions and wages with other employees. In light of this new report, now is a great time to review your social media policy. McBrayer, McGinnis, Leslie & Kirkland, PLLC can assist you with your social media policy needs to help ensure compliance with the NLRA.
Brittany Blackburn Koch, Esq., is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a native of Pikeville, Kentucky, and a graduate of Centre College and the University of Kentucky College of Law. Ms. Koch’s practice focuses primarily on family law, employment law, criminal law and civil litigation. Ms. Koch has served in numerous public service roles, including representation for Fayette County Bar Association Domestic Violence Pro Bono Advocacy Program. She is actively involved in various organizations and committees, including the Board of Directors for Court Appointed Special Advocates (CASA), Young Professional Committee of Lexington Public Library Foundation, Fayette County and Kentucky Bar Associations, and Centre College Alumni Association.
She may be reach at bkoch@mmlk.com or at (859) 231-8780, ext. 300.
NLRB’s Continued Focus on Social Media
NLRB’s Continued Focus on Social Media, Use of Reinstatement Remedies to Protect Concerted Activity, and New Guidance for Employers Drafting Social Media Policies
As a follow-up to one of my prior blog posts — Around the Virtual Water Cooler: Assessing, Implementing and Enforcing Company Social Media Policies in Light of Recent National Labor Relations Board (“NLRB”) Trends, June 2011 — the NLRB has once again confirmed that it has made social media an enforcement priority, and that its primary target remained employers who terminate employees for engaging in “concerted activity” that is protected by the National Labor Relations Act (“NLRA”).
- A. Continued Focus on Protecting Concerted Activity Via Social Media and Recent Use of Reinstatement as a Remedy
Recently, in Design Technology Group, LLC et al., Case 20-CA-35511 (Apr. 27, 2012), an Administrative Law Judge found that a San Francisco based non-union clothing retailer, Bettie Page, engaged in unfair labor practices when it discharged three employees who had engaged in protected concerted activity — discussing poor management of their workplace and concerns about working late in an unsafe neighborhood[1] — via Facebook, just six days after the relevant social media posts. What is perhaps most noteworthy about this decision is that, not only was Bettie Page ordered to pay the discharged employees back wages, it was also ordered to reinstate the employees. This should serve as a caution to employers who terminate employees for engaging in protected concerted activity via social media. It is now a reality that they may be forced to re-hire the discharged employees, despite severely strained relationships — which probably weren’t helped by the initial firing and legal action — and regardless of whether the employer has an appropriate position available.
- B. New Guidance for Employers Implementing Social Media Policies
Continued focus on unfair labor practices in response to social media communications is no surprise. What is interesting, however, is that related decisions are beginning to give employers some real guidance on what they should and should not include in their social media policies. As addressed in my last blog entry on this topic, the NLRB’s focus on social media communications was, in part, prompted by employers who drafted and enforced overly-broad social media policies. The effect of those polices was to stifle protected concerted activity by telling an employee that he or she could not utilize social media, or could not mention his or her employee in social media posts, or could not criticize his or her employer via social media, etc. In response to the NLRB’s focus on narrowing social media policies to except protected concerted activity, many employers simply included disclaimers or “saving clauses” in their social media polices. A “savings clause” or disclaimer, for example, might directly state the social media policy should not be interpreted to prohibit “protected concerted activity”.
In response to these one-size-fits all practice (among other concerns); the NLRB recently issued its second social media related memo.[2] Within this memo, the NLRB highlighted a case in which an employee was reprimanded in front of others for failing to perform a task she had never been instructed to perform. Shortly thereafter, she updated her Facebook status to include an expletive followed by the name of her employer’s store, and subsequently updated her status to state that her employer did not appreciate its employees. Co-workers commented or “liked” her status each time. She was discharged for her status updates.
While the NLRB found that this discharged employee was not engaging in protected concerted activity, but rather making individual “gripes,” it also found that the employer’s social media policy was overly-broad, and could reasonably be interpreted by employees as prohibited protected concerted activity. Thus, it was deemed unlawful. Specifically, the policy in question provided that employees should generally avoid identifying themselves as an employee of their company, unless he or she was discussing the terms and conditions of his or her employment in an “appropriate manner”. The policy did not define what constituted an “appropriate” or “inappropriate” discussion of terms and conditions of employment, through specific examples or otherwise. Importantly, the policy also included a “saving clause” that provided (in sum) that the policy would not be interpreted or applied so as to interfere with employee rights to engage in concerted activities. However, the NLRB found that the “savings clause” was insufficient to cure ambiguities in the policy, and was thus, ineffective. Its reasoning was quite simple — an employee could not be reasonably expected to know what social media language/activity was “appropriate” and what language/activity was “inappropriate”. This finding now provides some much needed guidance to employers.
In light of the NLRB’s second social media memo, which specifically addresses the ineffectiveness of savings clauses and protected concerted activity disclaimers, it is ever more clear that employers must look carefully at their social media policies, tailor them to their specific business, and spell out for its employees, what rights are protected by the NLRA as protected concerted activities. Further, if a social media policy could reasonably be interpreted by an employee to prohibit or discourage protected concerted activities, it may violate the NLRA. Employers also need to make sure that their human resources department and management team are educated in what language and activity is protected by the NLRA, and how that language and activity might be expressed via social media, so that they are properly informed when implementing discipline in response to misuse of social media.
Ryan Colleen Daugherty is an associate and member of the firm’s Litigation group. She focuses on employment and other commercial litigation, as well as estate administration and planning matters. She can be reach at rdaugherty@mmlk.com or at (859) 231-8780.
[1] The conversation amongst the discharged employees follows:
Employee A: bettie page would roll over in her grave.
Employee B: She already is girl!
Employee 1: 800 miles away yet she’s still continues our lives miserable. Phenomenal!
Employee B: And no one’s doing anything about it! Big surprise!
Employee C: “bettie page would roll over in her grave.” I’ve been thinking the same thing for quite some time.
Employee A: hey dudes it’s totally cool, tomorrow I’m bringing a California Worker’s Rights book to work. My mom works for a law firm that specializes in labor law and BOY will you be surprised by all the crap that’s going on that’s in violation 8) see you tomorrow!
Class Action Waivers in Employee Arbitration Provisions: Proceed with Caution – For Now.
Employee arbitration provisions containing class or collective action waivers are frequently utilized by non-union employers, often within employment agreements as a condition of employment. The National Labor Relations Board (NLRB), however, recently issued a decision regarding the validity of such provisions which could significantly impact the ability of employers to enforce class waivers.
In D.R. Horton, Inc., 357 NLRB No. 184 (Jan. 3, 2012), the NLRB considered the validity of a binding arbitration provision, executed by each of a company’s new employees as a condition of employment, which prohibited employees from bringing any class or collective action proceeding. The NLRB ruled that the provision’s prohibition against class and collective action proceedings was violative of Section 8(a)(1) of the National Labor Relations Act (NLRA) insofar as it infringed the employees’ rights to engage in concerted action for mutual aid or protection. The NLRB specifically found that its decision striking down the enforcement of these arbitration provisions did not conflict with the Federal Arbitration Act’s (FAA) established policy favoring enforcement of arbitration agreements.
Troublingly, this decision conflicts with recent U.S. Supreme Court precedent on mandatory arbitration provisions. In AT&T Mobility, LLC v. Concepcion, 131 S.Ct. 1740 (2011), the Supreme Court expressly upheld the use of class action waivers in arbitration agreements, albeit on a somewhat different factual underpinning (the arbitration clause at issue in Concepcion was contained in customer cell phone contracts). In Concepcion, the U.S. Supreme Court found that the longstanding, liberal policy favoring arbitration and the validity of arbitration agreements under the FAA was at odds with any effort to avoid an arbitration provision – even when the arbitration provision goes so far as to disallow class proceedings. Though Concepcion considered an arbitration clause pertaining to a customer contract rather than to an employment agreement, the Supreme Court’s ruling confirmed a strong bias in favor of upholding arbitration provisions on the fundamental principle that arbitration is a matter of contract and such agreements should be enforced strictly according to their terms – a rationale directly at odds with the NLRB’s holding in D.R. Horton, Inc.
Interestingly, another recent Federal Court ruling in the Second Circuit[1], decided just 10 days after D.R. Horton, Inc., cited specifically to Concepcion for support in upholding the validity of a class waiver contained in an arbitration provision. Arguably, therefore, the NLRB’s rationale in D.R. Horton, Inc. does not reflect the prevailing interpretation of the FLSA and the FAA. It is thus possible that the holding in D.R. Horton, Inc. will ultimately be overturned (a petition for review has been filed in the Fifth Circuit) so long as the reviewing court is willing to extend the precedent established in Concepcion to the employer/employee context.
Whether or not the D.R. Horton, Inc. decision is overturned, it is clear that the NLRB is focusing on non-unionized employers with increasing scrutiny and seems determined to oppose the use of any exceedingly restrictive arbitration provisions. Employers would be wise to review the scope of their arbitration provisions – specifically with respect to the existence of any class or collective action waivers – and should keep abreast of how the reviewing courts ultimately rule on the D.R. Horton, Inc. decision.
W. Chapman Hopkins is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Hopkins concentrates his practice in litigation, with a focus on employment, business, and equine law. He is located in the firm’s Lexington office and can be reached at chopkins@mmlk.com or at (859) 231-8780.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
[1] See LaVoice v. UBS Financial Services, 2012 WL 124950 (USDC, S.D. New York Jan. 13, 2012)
NLRB Postpones Posting Notice Rule to April 30, 2012
The National Labor Relations Board (“NLRB”) officially announced that its implementation deadline for the new notice-posting rule has been postponed from January 31, 2012 to April 30, 2012. The NLRB issued a press release stating that it agreed to postpone the implementation of the rule per the request of a Washington D.C. federal court before which a legal challenge regarding the rule is pending. In a notice posted on its website, the NLRB announced:
[I]t has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule. The new implementation date is April 30, 2012.
(www.nlrb.gov/news/nlrb-postpones-effective-date-rights-posting-rule-april-30)
The new rule requires most private sector employers to post a notice advising employees of their rights under the National Labor Relations Act. This notice must be posted in a conspicuous place, where other notifications of workplace rights and employer rules and policies are posted. The employer must take reasonable steps to ensure that the poster is not altered, defaced, covered, or otherwise rendered unreadable. Additionally, if the employer posts personnel policies or notices on an internal or external website, a link to the notice should also be posted on that website.
The NLRB requires that the poster be 11 x 17 inches. It may be in color or black and white. The notice must be posted in English. If at least twenty percent (20%) of employees are not proficient in English, the notice must also be posted in another language. The NLRB provides translated copies of the posters into many commonly used languages. If the NLRB does not provide a translation of the notice into a particular language, the employer will not be held liable for failing to translate the poster into that language. All posters are available for download at the NLRB website: www.nlrb.gov/poster.
The NLRB has established a website page to answer frequent questions relative to the new notice-posting rule at www.nlrb.gov/faq/poster.
Brittany Blackburn Koch, Esq., is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a native of Pikeville, Kentucky, and a graduate of Centre College and the University of Kentucky College of Law. Ms. Koch’s practice focuses primarily on family law, employment law, criminal law and civil litigation. Ms. Koch has served in numerous public service roles, including representation for Fayette County Bar Association Domestic Violence Pro Bono Advocacy Program. She is actively involved in various organizations and committees, including the Board of Directors for Court Appointed Special Advocates (CASA), Young Professional Committee of Lexington Public Library Foundation, Fayette County and Kentucky Bar Associations, and Centre College Alumni Association.
