NLRB Notice Posting Saga Continues: Federal Court Blocks Board's Rule

The National Labor Relations Board’s notice posting rule has been under fire since it was issued last year. In the past few months, the rule has garnered significant attention in courts around the country. The rule would require all employers subject to the Board’s jurisdiction to notify employees of their rights under the National Labor Relations Act, including the right to unionize. To that end, employers were required to post a Notice of Employee Rights in the workplace by April 30, 2012.

Earlier this week, we reported on a recent decision from the U.S. District Court for the District of South Carolina striking down the Board’s notice posting rule because it went beyond the scope of the Board’s limited rulemaking authority. The South Carolina decision followed on the heels of a decision by the District Court for the District of Columbia that upheld the posting rule. (While the D.C. court upheld the posting requirement, it struck down the part of the rule that would impose penalties on employers who failed to comply.) Business groups immediately appealed the D.C. decision to the U.S. Court of Appeals for the D.C. Circuit.

In light of these conflicting decisions, and with the end of April quickly approaching, employers were left wondering whether the Board would again postpone the effective date of the rule. Well, employers just got an answer. Or at least a temporary one.

On April 17, 2012, in response to an emergency motion, the D.C. Circuit issued an injunction blocking the Board from implementing the posting rule during the appeal. In its decision granting the injunction, the D.C. Circuit referenced the earlier South Carolina opinion and the uncertainty about the enforcement of the rule.

As a result of the court’s injunction, employers nationwide are relieved from having to comply with the notice posting rule until the conclusion of the appeal. While the appeal is on an expedited schedule, a decision is not expected until September 2012 at the earliest.

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