The current administration's pro-labor stance has not given private employers much to smile about over the last couple of years. Last week, however, a federal judge in South Carolina provided employers with some much needed good news on this front. In a lawsuit brought by the U.S. and South Carolina Chambers of Commerce against the National Labor Relations Board (NLRB), the judge ruled that the NLRB lacked the statutory authority to issue the regulations that require employers to post a notice informing their employees of their rights under the National Labor Relations Act. This ruling comes on the heels of a federal judge in the District of Columbia determining last month in a separate lawsuit that the NLRB had the authority to issue the notice requirement.
In the South Carolina case, the court, analyzing the language of the National Labor Relations Act, determined that while the statute gives the Board the authority to issue rules to carry out the provisions of the Act, the Board's actions in requiring the posting of a notice went too far. The court was mindful of the fact that the statute does not contain an express notice requirement, which is contrary to a number of other prominent employment laws, such as the Fair Labor Standards Act and anti-discrimination laws such as Title VII and the ADA. The lack of any express statutory authority was noteworthy given the law's 75-year history and the fact that Congress has amended the act on a number of occasions. The court found that Congress knew how to include an express notice requirement and never chose to do so.
What does this mean for employers? As of today, the April 30th implementation date is still in place, so employers should be prepared to post the notice. There's a likelihood, however, that this deadline will be pushed back . . . again. As you know from our prior blog posts, the poster requirement was initially set to take effect in August of last year. The Board voluntarily pushed that date back to November 2011, and after multiple lawsuits were filed challenging the requirement, the Board pushed it further, to February 2012. Earlier this year the Board opted to push the deadline back to the end of April, likely in hopes of getting favorable rulings in the pending lawsuits.
Given the split in authority between the two federal courts, it's not yet known what the Board will do. The plaintiffs in the case filed in the District of Columbia have appealed the court's ruling upholding the validity of the poster requirement. Likewise, the NLRB will almost certainly appeal the South Carolina judge's ruling striking the requirement down. These appeals will progress on separate tracks to different federal appellate courts. Even on an expedited basis, it would likely take some time to get a final resolution. It is possible, however, that an appellate court could enter an emergency order impacting the implementation of the notice rule.
For now, if you are a private-sector employer subject to the posting requirement, be prepared to get the posters up by the end of this month, but don't be surprised if you are able to put them away for a bit longer.