NLRB Proposed Rule on Employee Notice Posting Requirements

Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations 54027 confusion for many employees. Currently, the language in the notice tracks statutory language and provides only the list of employees excluded from coverage. As a result, those employees not listed under the exclusions will reasonably believe they are covered employees under the statute. Any employees who are unsure of their status should contact a regional office of the NLRB. The final notice as modified is set forth in the Appendix to Subpart A of this rule. 2. Posting Issues The Board proposed that the notice to employees shall be at least 11 inches by 17 inches in size, and in such colors and type size and style as the Board shall prescribe. The proposed rule further provides that employers that choose to print the notice after downloading it from the Board’s Web site must print in color, and the printed notice shall be at least 11 inches by 17 inches in size. Proposed § 104.202(d) requires all covered employers to post the employee notice physically “in conspicuous places, including all places where notices to employees are customarily posted.” Employers must take steps to ensure that the notice is not altered, defaced, or covered with other material. Proposed § 104.202(e) states that the Board will print the notice poster and provide copies to employers on request. It also states that employers may download copies of the poster from the Board’s Web site, http://www.nirb.gov, for their use. It further provides that employers may reproduce exact duplicates of the poster supplied by the Board, and that they may also use commercial poster services to provide the employee notice consolidated onto one poster with other Federally mandated labor and employment notices, as long as consolidation does not alter the size, color, or content of the poster provided by the Board. Finally, employers that have significant numbers of employees who are not proficient in English will be required to post notices of employee rights in the language or languages spoken by significant numbers of those employees. The Board will make available posters containing the necessary translations. In addition to requiring physical posting of paper notices, proposed § 104.202(f) requires that notices be distributed electronically, such as by e- mail, posting on an intranet or an internet site, and/or other electronic means, if the employer customarily communicates with its employees by such means.' An employer that customarily posts notices to its employees on an intranet or internet site must display the required employee notice on such a site prominently—i.e., no less prominently than other notices to employees. The Board proposed to give employers two options to satisfy this requirement. An employer may either download the notice itself and post it in the manner described above, or post, in the same manner, a link to the Board’s Web site that contains the full text of the required employee notice. In the latter case, the proposed rule states that the link must contain the prescribed introductory language from the poster, which appears in Appendix to Subpart A, below. An employer that customarily communicates with its employees by e-mail will satisfy the electronic posting requirement by sending its employees an e-mail message containing the link described above. The proposed rule provides that, where a Significant number of an employer’s employees are not proficient in English, the employer must provide the required electronic notice in the language the employees speak. This requirement can be met either by downloading and posting, as required in § 104.202(f), the translated version of the notice supplied by the Board, or by prominently displaying, as required in § 104.202(f), a link to the Board’s Web site that contains the full text of the poster in the language the employees speak. The Board will provide translations of that link. 75 FR 80417. Section 104.203 of the proposed rule provides that Federal contractors may comply with the requirements of the tule by posting the notices to employees required under the Department of Labor’s notice-posting rule, 29 CFR part 471. Id. The Board solicited comments on its proposed requirements for both physical and electronic notice posting. In addition, the Board solicited comments on whether it should prescribe standards regarding the size, clarity, location, and brightness of the electronic link, including how to prescribe electronic postings that are at least as large, clear, and conspicuous as the employer’s other postings. The Board received numerous comments concerning the technical requirements for posting the notices of employee rights. Those comments address the locations where notices would be physically posted, physical characteristics of the posters, 111 See J. Picini Flooring, 356 NLRB No. 9, slip op. at 6 (2010). requirements for posting in languages other than English, details of the requirement for electronic posting of notices by employers that customarily communicate with their employees electronically, and “safe harbor’ provisions for Federal contractors that are already posting the Department of Labor’s notice of NLRA rights. a. Location of Posting Section 104.202(d) of the proposed rule requires that the notice be posted “in conspicuous places, including all places where notices to employees are customarily posted.’ Some employers and their representatives, including law firm Baker & McKenzie, comment that the proposed rule does not define “customarily.” The Board responds that the term is used in its normal meaning of “ordinarily” or “usually,” as it has been used in the Board’s remedial orders for decades.112 This standard is consistent with the posting requirements in the regulations and statutes of other agencies.113 Baker & McKenzie’s comment contends that the quoted phrase should read instead “where other legally-required notices to employees are customarily posted.’’ The Board disagrees. As under the Department of Labor’s notice posting requirement,‘ the Board’s final rule clarifies that the notice must be posted wherever notices to employees regarding personnel rules and policies are customarily posted and are readily seen by employees, not simply where other legally mandated notices are posted. A number of comments from employers 115 and individuals take the position that it is time to move away from paper posters and to encourage employees to inform themselves of their rights through the Internet. Many comments object that the posting requirement will add to already cluttered bulletin boards or necessitate additional bulletin boards.11® The Board responds to these comments above in section II, subsection C, Factual Support for the Rule. The Council of Smaller 112 See, e.g., The Golub Corporation, 159 NLRB 355, 369 (1966). 113 See, e.g., 29 CFR 1903.2 (Occupational Safety and Health Act); 29 CFR 1601.30 (Title VII of the Civil Rights Act of 1964); 42 U.S.C. 2000e-10(a) (Americans with Disabilities Act); 29 U.S.C. 2619(a) (Family and Medical Leave Act). 114 75 FR 28386. 115 See, e.g., comments of Buffalo Wild Wings; Associated Milk Producers, Inc.; Smitty’s, Inc.; National Grocers Association; and Sorensen/Wille, Inc. 116 See, e.g., comments of Dr. Pepper Snapple Group; Georgia Caremaster Medical Services; Homestead Village, Inc.; Exodus Designs & Surfaces; Bonnie Dedmore State Farm. HOUSE_OVERSIGHT_022298