NLRB Final Rule on Multilingual and Electronic Posting of Employee Rights Notices

Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations 54029 employees about their rights.176 But several comments complain that the rule does not define “significant.” 127 Baker & McKenzie proposes that the standard be 40 percent specifically of the employer’s production and maintenance workforce, while the National Immigration Law Center proposes a 5 percent standard. Another comment urges that translated notices be required whenever any of the employees are not proficient in English.128 The U.S. Chamber of Commerce asserts that a safe harbor is needed for employers when a notice in a particular language is not yet available from the Board. Moreover, a few comments contend that the Board should also provide Braille notices for vision-impaired employees, as well as audio versions for illiterate employees, and versions of the notice that are adaptable to assistive technologies.129 One individual proposes that the rule mandate that employers read the notice to employees when they are hired and to all employees annually. Having carefully considered the comments, the Board has decided to define “significant” in terms of foreign- language speakers as 20 percent or more of an employer’s workforce. Thus, if as many as 20 percent of an employer’s employees are not proficient in English but speak the same foreign language, the employer must post the notice in that language, both physically and electronically (if the employer is otherwise required to post the notice electronically). If an employer’s workforce includes two or more groups constituting at least 20 percent of the workforce who speak different languages, the employer must either physically post the notice in each of those languages or, at the employer’s option, post the notice in the language spoken by the largest group of employees and provide each employee in each of the other language groups a copy of the notice in the appropriate language. If such an employer is also required to post the notice electronically, it must do so in each of those languages. If some of an employer’s employees speak a language not spoken by employees constituting at least 20 percent of the employer’s workforce, the employer is encouraged, but not required, either to provide the 126 See, e.g., comments of National Immigration Law Center, Legal Aid Society—Employment Law Center, and La Raza Centro Legal; Filipino Advocates for Justice. 127 See, e.g., comments of COLLE; Food Marketing Institute (FMI). 128 Georgetown law students. 129 See, e.g., Baker & McKenzie; Heritage Foundation; Georgetown law students. notice to those employees in their respective language or languages or to direct them to the Board’s Web site, http://www.nirb.gov, where they can obtain copies of the notice in their respective languages. The Board has also decided to add to the notice instructions for obtaining foreign- language translations of the notice. Employers will be required to request foreign-language notices from the Board or obtain them from the Board’s Web site in the same manner as the English- language notice. If an employer requests from the Board a notice in a particular language in which the notice is not available, the requesting employer will not be liable for non-compliance with the rule until the notice becomes available in that language. With respect to employees who are vision-impaired or those who are illiterate, employers may consult the Board’s Regional Office on a case-by- case basis for guidance on appropriate methods of providing the required notice, including by audio recording. d. Electronic Posting Many employer comments oppose the requirement for electronic notice. The Coalition for a Democratic Workplace points out that other agencies do not require both electronic and physical posting and asserts that only one method is necessary. For example, the Coalition notes that the Family and Medical Leave Act notice obligation is satisfied by electronic posting alone, and other statutes do not mention electronic posting. The National Council of Agricultural Employers urges the Board to require electronic posting only if the employer posts other statutory or regulatory notices in that fashion. Another proposes that employers be permitted to choose either physical or electronic posting. The National Association of Manufacturers remarks that the proposed rule breaks new ground for using an employer’s email system to communicate information about “union membership.” The U.S. Chamber of Commerce suggests that this aspect of the rule would chill employers’ use of new technologies. On the other hand, the AFL-CIO and several other commenters t*° support electronic as well as physical posting; the Center for American Progress Action Fund, among others, points out that electronic communications at work are standard now. After carefully considering these comments, the Board concludes that electronic posting will substantially 130 See, e.g., comments of Gibson, Dunn, Cohen, Leifer & Yellig, P.C.; Beeson, Tayer & Bodine. assist in providing the prescribed notice to employees. As some comments state, electronic communication is now a routine practice in many workplaces and the source of much information from employers to their employees. However, the Board has clarified the final rule to mandate only that, if an employer customarily communicates personnel rules or policies to its employees in that manner, it must also do so with respect to the notice of employee rights under the NLRA. The concern that the rule will discourage employers from using new technologies is apparently not widely shared and, in the Board’s view, is implausible. Although the Board recognizes that some other statutes and regulations do not require electronic notice, it notes that they generally predated the routine use of electronic communications in the workplace. Having only recently begun ordering electronic posting of remedial notices,!$? the Board has limited experience in this area, and employers are encouraged to contact the local Regional Office with questions about this provision. The Board does not agree that employers should be permitted to choose whether to provide physical or electronic notice, because some employers could select the less effective of these alternatives, thus undermining the purpose of the rule. Finally, the rights stated in the notice are not accurately described as pertaining solely to union membership, and the notice is not intended to promote union membership or union representation. Rather, the notice addresses a broad range of employee legal rights under the NLRA, which involve protected concerted activity as well as union activity in both organized and unorganized workplaces, and also the right to refrain from any such activity. Many employer comments note that the proposed rule also does not define “customarily” as it pertains to electronic posting in § 104.202(f), i.e., the type and degree of communication that triggers the requirement.13 Numerous employers also participated in a postcard campaign objecting, among other things, that employers use a wide variety of technology to communicate with employees and that the rule could require them to use all methods to convey the notice.133 For 131 J, Picini Flooring, 356 NLRB No. 9 (2010). 182 See, e.g., comments of International Foodservice Distributors Association (IFDA); Associated Builders and Contractors; Los Angeles County Business Federation; National Roofing Contractors Association. 133 See, e.g., comments of American Home Furnishings Alliance; Seawright Custom Precast; Continued HOUSE_OVERSIGHT_022300