On August 25, 2011, the National Labor Relations Board announced publication of a Final Rule requiring most private employers covered by the National Labor Relations Act to post a notice advising employees of their rights under the Act and about Board enforcement of those rights.

In addition to adding a new unfair labor practice charge against employers, the Rule may trigger an increase in union organizing by raising employee awareness.

The Final Rule takes effect on November 14, 2011. Employers who do not comply will be in violation of Section 8(a)(1) of the Act. The Rule also provides for tolling the six-month time limit for filing an unfair labor practice charge in cases where an employer does not post the required notice, unless the employee received actual or constructive notice that the conduct he or she complains of is unlawful.

In issuing the Rule, the Board noted that most other federal agencies enforcing workers’ rights have similar requirements and cited findings that many American workers are unaware of their rights under the Act.

The Rule requires that the notice be at least 11-by-17 inches and list an extensive set of employee rights under the Act, including the following:

  • To organize a union to negotiate with the employer on wages, hours, and other terms and conditions of employment
  • To form, join, or assist a union
  • To bargain collectively through employee-chosen representatives for a contract setting wages, hours, benefits, and other working conditions
  • To discuss wages and benefits and other terms and conditions of employment or union organizing co-workers or a union
  • To act with one or more co-workers to improve working conditions by, among other things, raising work-related complaints to employers or a government agency
  • To strike and picket
  • To refrain from engaging in any of these activities

The required notice lists a number of employer practices that are unlawful under the Act, such as threatening employees who engage in protected activity. The poster further notes that employees can file charges with the Board to enforce their rights and provides contact information and information on the Board Web site.

A copy of the poster can be obtained from Board offices and will also be available for download and printing from its Web site.

The notice must be kept in “conspicuous places … including all places where notices to employees are customarily posted,” and the employer must ensure that it is not altered, defaced, or rendered unreadable. Notably, employers who “customarily communicate” personnel rules or policies electronically must also post the notice on their Internet or intranet sites.

When 20 percent or more of a workforce is not proficient in English, the employer must provide a copy of the notice in the language the employees speak. When a workforce consists of two or more groups meeting that specification, the employer must either post the notice in those languages or post the notice in the language spoken by the largest group of employees and provide copies in the appropriate languages to the others.

The Board will provide copies of the notice in a number of languages, which employers can download or request from regional Board offices. An employer will not be liable for failure to post the notice in a particular language until the Board makes that version available.

Ballard Spahr's Labor and Employment Group routinely assists employers in complying with the National Labor Relations Act and responding to charges of violations. Additionally, the Group has extensive experience in counseling employers facing union organizing campaigns.


Copyright © 2011 by Ballard Spahr LLP.
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