September 23, 2020

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September 23, 2020

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Labor Board Says Notice Posting Requirement Cannot Be Satisfied During Shutdown

When the NLRB finds that employers have violated the NLRA, it often subjects the employer to its so-called “notice posting” remedy. The notice is required to be posted conspicuously in the workplace, and informs employees of the violation(s), as well as the employer’s commitment to follow the law in the future. The notice must be posted within 14 days of the Board ordering it, and must remain in place for 60 days.

An employer currently shut down due to the ongoing COVID-19 public health emergency may find it convenient to skirt the intent of the notice posting rule (i.e., to notify employees of the violation(s) found by the Board) by duly posting the notice in an empty workplace. Indeed, the 14-day timeframe for posting seems to require such action if the employer found to have violated the Act is in shutdown mode 14 days after the Board’s order.

This week, however, the Board said “not so fast!” It announced that for businesses shut down or operating with a significantly smaller workforce due to the COVID-19 outbreak, the 14-day rule does not apply, and the 60 day time period for posting does not begin to run until a “substantial compliment” of workers has returned. The reason for the adjustment is clear as it salvages the central purpose of the notice posting rule. For employers, however, it closes the door on what some may have seen as an opportunity to avoid the annoyance of the notice posting.

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume X, Number 129

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About this Author

Anthony Glenn Employment lawyer Barnes Thornburg
Associate

Anthony K. Glenn is an associate in Barnes & Thornburg's Indianapolis office and is a member of the Labor and Employment Law Department.

Anthony has experience counseling clients on a number of issues concerning both traditional labor and employment law, such as termination decisions, medical leave management, disability accommodation, workplace discrimination, and wage and hour issues, as well as union avoidance and management of a collective bargaining relationship. He also has experience with the litigation process in federal and state employment agencies...

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