On April 17, 2012, the United States Court of Appeals for the District of Columbia Circuit enjoined the National Labor Relations Board (”NLRB”) from implementing its controversial rule requiring most private employers to post a notice of employee rights under the National Labor Relations Act (”NLRA”). As we have noted in prior Labor & Employment Updates, the rule was to become effective April 30.
In early March, a federal district court in the District of Columbia generally upheld the NLRB’s authority to promulgate and implement the notice-posting rule, although the court did strike down portions of the rule dealing with penalties and statutes of limitations. Various business groups appealed this decision to the D.C. Circuit Court of Appeals.
On Friday, April 13, 2012, in another lawsuit challenging the NLRB’s right to implement the rule, Judge David C. Norton of the District Court of South Carolina ruled that NLRB lacked the statutory authority to require the posting. He held that the NLRB’s rule-making power is limited to those rules that are necessary to carry out NLRB’s primary functions (conducting elections and investigating and processing unfair labor practice proceedings). Judge Norton also noted that contrary to other federal employment statutes, nothing in the NLRA requires employers to post notices of employee rights.
In enjoining implementation of the rule, the court of appeals cited the uncertainty about enforcement of the rule as a result of the conflicting district court holdings and the pending appeal, and held that the status quo should be maintained until these issues are resolved. The court set a briefing schedule and has indicated that oral argument will be set for a date in September of this year.
Although it will be some time before these legal issues are ultimately resolved, for the time being at least, employers will not be required to comply with the notice-posting rule. We will watch all of these cases closely and keep you updated on developments.© 2013 Schiff Hardin LLP