On the eve of the deadline for employers to post an Employee Rights notice required by the National Labor Relations Board (NLRB), the United States Court of Appeals in Washington, DC ruled on April 17, 2012 that the NLRB is barred from requiring the posting while litigation challenging the rule is pending.
The rule mandating the NLRB posters, which applies to all employers covered by the National Labor Relations Act – whether or not they currently are unionized – was slated to take effect on April 30, 2012.
The D.C. Circuit Court set a briefing schedule in the appeal and ordered oral argument in the case to be set for September. As a result, the court injunction should remain in effect until at least September 2012.
Shortly after the ruling, the NLRB issued a statement that, in light of the D.C. Circuit's order, conflicting court rulings and "the strong interest in the uniform implementation and administration of agency rules," its regional offices will not implement the posting rule pending the resolution of issues before the court.
Because other legal challenges are pending and there is a split between federal courts, some experts predicted the issue of the NLRB's right to require the employee rights posting could end up before the U.S. Supreme Court.
But, for the moment, the ping pong ball in this dispute has stopped, and employers are relieved of the obligation to post the NLRB notice, probably until at least September.
Bennett Pine is a Shareholder in Anderson Kill's New York and Newark offices and is Chair of the firm's employment and labor law group. Mr. Pine has broad-based labor and employment law experience and regularly plays a hands-on role offering preventative maintenance advice and counseling to employers in the full range of legal issues affecting the workplace.