Courts Finds NLRB Employee Rights Poster Unlawful
Last week, a federal District Court in South Carolina ruled that the NLRB does not have the authority to require employers to post its Employee Rights Poster. The ruling was issued in a lawsuit brought by the U.S. Chamber of Commerce challenging the validity of the posting requirement. The judge held that the NLRA does not require any type of notice posting and that the NLRB's actions in requiring the posting were, therefore, not necessary to carry out the Act. The judge also reasoned that the NLRB's role is intended to be a “reactive” one, responding to unfair labor practice charges, petitions and the like. In requiring employers to post an employee rights notice, the NLRB is attempting to act in a “proactive” role and not in its intended reactive role. While this ruling is good news for employers, it is not the final word on the validity of the notice. Employers may recall that recently, another federal district court judge (District of Columbia) ruled that the notice was lawful. That decision is currently on appeal before the Eleventh Circuit Court of Appeals, and it is likely that the NLRB will appeal the South Carolina District Court's adverse ruling. With the newly issued adverse ruling, it is possible that the NLRB will again delay the effective date for the posting—which is currently April 30. Employers should stay tuned for further developments on this issue.