NLRB Adopts Notice Posting Requirement For Private Sector Employers

The National Labor Relations Board has issued a Final Rule requiring most private-sector employers to post a notice notifying employees of their rights under the National Labor Relations Act. The final rule is scheduled to be posted in the Federal Register on August 30, 2011 and will take effect 75 days later, on November 14, 2011. The poster is similar to the one federal contractors are already required to post pursuant to Executive Order 13496, which was issued by President Obama on January 30, 2009. The Board’s new rule expands the notice requirement beyond federal contractors to most private sector employers. Copies of the required poster should be available from the Board and on the Board’s website in the near future, and at least before November 1, 2011. The Notice must be posted by November 14, 2011.

In addition to physical posting, the rule requires every covered employer to post the notice on an internet or intranet site if other personnel rules and policies are customarily posted there.

Failure to post the notice will be considered an unfair labor practice and an employee may file a charge based on the failure. Additionally, the rule provides that the Board may extend the 6-month statute of limitations for filing a charge involving other, unrelated unfair labor practice allegations during the time the notice is not posted. Finally, if an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.

Board Member Brian Hayes dissented from the rulemaking, asserting that the Board does not have the authority to promulgate the rule or to toll the statute of limitations spelled out in the Act. Member Hayes also commented on the Board’s motivation for creating the posting requirement stating that “Surely, no one can seriously believe that today’s rule is primarily intended to inform employees of their Section 7 right to refrain from or to oppose organizational activities, collective bargaining, and union representation. My colleagues seek through promulgation of this rule to reverse the steady downward trend in union density among private sector employees in the nonagricultural American workforce.” Indeed, employers should expect that the posting the notice will prompt employees to begin asking questions about unions and employers should be prepared to explain to employees the truth about what it means to be unionized.

There is likely to be a legal challenge to the rule in the near future. We will continue to monitor any developments.

Brave New World in Tennessee: E-Verify

Following up on the news that the Tennessee legislature passed a new law - 'The Tennessee Lawful Employment Act' - ('TLEA') in an effort to require all employers to use the federal 'E-Verify' employment authorization system, we will address 5 specific areas of the new law. (Please see prior post of July 7, 2011 for an overview of the Law). The first topic is the 'E-Verify' requirement.

In actuality, this is as much about the Form I-9 process as it is E-Verify. Basically, once the law becomes effective for each employment sector (based upon size), an employer is required to either maintain copies of documents provided by the employee to prove employment eligibility - or use E-Verify to verify employment authorization. The document copies or authorization from E-Verify must be kept for either 3 years after the documentation is provided (or 'date of hire' for E-Verify) or 1 year following termination of employment, whichever is longer.

For those of you who work with the Form I-9, this all sounds familiar - but a little 'off'. For example, the Tennessee law limits the acceptable documents to an odd assortment of birth certificates and 'current immigration registration', etc. Although all of the listed documents appear to be on the list of I-9 approved documents, not all I-9 approved documents appear on the list of Tennessee approved documents. Thus, employers are faced with the peculiar problem of getting documents for the I-9 and then possibly seeking different documents for the TLEA requirements. Of course, to avoid a charge of discrimination, you should not request the employee to provide any specific document on either list; (see, recent U.S. Dept. of Justice settlement with Summit Steel Fabricators, Inc. for an idea of fines and penalties).

The alternative is to enroll in E-Verify. This, of course, is what the Legislature hopes you will do. Without going into details about the E-Verify process at this time, ultimately, you should not begin the employment of an employee until you verify that the employee is authorized to work through the E-Verify system, and maintain proof of this verification for 3 years after hire or 1 year after termination, whichever is later. The incentive, however, is that if it turns out that an employee that you have hired is actually not authorized to work, you can avoid the charge of having 'knowingly' hired an illegal alien by using E-Verify. This is the 'Safe Harbor' under the Tennessee law. Conversely, reliance simply upon keeping documents related to the I-9 process is an ineffective defense to the charge. And the distinction between a 'Safe Harbor' and a charge of 'knowingly' hiring an unauthorized employee is very damaging both financially and to your ability to maintain your license to conduct business in the State of Tennessee.

Finally, it should be noted that you are also required to determine work authorization - from non-employees (e.g. independent contractors) who perform services for you!

That will be a discussion for our next blog -