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Federal Courts Block NLRB Posting Requirement

    Client Alerts
  • April 20, 2012

On Tuesday, the U.S. Court of Appeals for the District of Columbia Circuit issued an injunction preventing the National Labor Relations Board's employee labor rights poster requirement from taking effect as scheduled on April 30. The court will stay implementation of the rule until at least after its decision on the appeal of a lower court ruling upholding most of the posting requirement.

In addition, last Friday, a federal district court in South Carolina held that the new posting requirement is invalid, setting up another likely appellate court review of the rule.

This requirement had been previously postponed by the NLRB due to multiple legal challenges. As reported in EmployNews, last month the federal district court in Washington, D.C. upheld the posting requirement, but required the NLRB to show actual employee harm before an unfair labor practice enforcement action could be brought for failure to meet the posting requirement.

The purpose of the posting requirement is to assure that employees are aware of their rights to organize and collectively bargain with their employers, and to be free from discrimination or retaliation if they choose to do so. Employers and the South Carolina court contend that the NLRB lacks the statutory authority to require the posting. Given the multiple and conflicting court decisions, the Supreme Court may have the final word on the posting requirement.

The D.C. Circuit is not scheduled to hear arguments on the appeal until September. It is therefore likely that even if upheld, the posting requirement would not take effect until 2013 at the earliest.