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D.C. CIRCUIT STRIKES DOWN NLRB'S NOTICE POSTING RULE

On May 7, 2013, the D.C. Circuit Court of Appeals issued an opinion vacating the National Labor Relations Board’s regulation requiring employers to post a notice advising employees of their rights under the National Labor Relations Act. The posting rule was published in the Federal Register on August 30, 2011 (Labor Watch No. 11, 2011) and has been on hold pending resolution of several court challenges (Labor Watch No. 7, 2012).

 

A three member panel of the Court held that the Board’s rule violated the free speech rights of employers under Section 8(c) of the Act and found all three of the rule’s enforcement mechanisms unlawful. The Court held that two of the rule’s enforcements mechanisms (that failure to post the notice could be considered an unfair labor practice and that such failure could be evidence of anti-union animus in a case involving other alleged violations) violate Section 8(c). In addition, the Court found that the third enforcement mechanism (if the employer failed to post the notice through inadvertence, the Board could extend the 6-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer) to be completely unsupported by any authority in the Act

 

The Court struck down the entire rule because it found that all its enforcement mechanisms are invalid. The Court found it unnecessary to reach the question of whether the Board has the authority to issue the rule. However, two of the three judges stated in a concurring opinion that they would also hold that the Board lacks the authority to issue the posting rule.

 

In April of  last year a separate  District Court ruled that the Board did  not have the authority to  issue  the notice posting rule. The Board has appealed that decision to the Fourth Circuit. The questions regarding the Board’s posting rule have not been finally resolved so employers must remain vigilant for further developments. While these questions are being resolved, employers are not required to post a notice. However, federal contractors should be aware of their obligation to post a similar notice of employee labor law rights as required by Executive Order 13496. (See Labor Watch No. 4, 2009)

 

Finally, the new regulations create special rules for airline flight crew employees, including special hours of service requirement, method of calculation of leave and record keeping requirements.

 

In addition to the regulations, DOL has published an updated FMLA poster and has also updated several of its optional-use FMLA forms. The regulations go into effect on March 8, 2013. The poster can be found here: http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf.

 

The Labor Law Group at Fiddler González & Rodríguez, P.S.C., will issue the FGR LABOR WATCH with information of legal issues and developments in areas of interest to our friends and clients. If you know anyone who would like to receive the FGR LABOR WATCH, please feel free to forward this newsletter. For more information about any matter raised in this Labor Watch, please contact your usual FGR labor lawyer or José A. Silva Cofresí at jsilva@fgrlaw.com.

©2014 FIDDLER GONZÁLEZ & RODRÍGUEZ, P.S.C. Permission is granted to view, store, print, copy or distribute the content of this newsletter for noncommercial or personal use, provided you do not alter it and you give us proper credit. The content of this newsletter is for informational purposes only. It is not legal advice or advertising. In addition, the above discussion has been provided in general terms and, therefore, should not be relied upon as legal advice applicable to a specific set of facts and circumstances. Before taking legal action, consult a lawyer you trust. Although we will try to be accurate, you cannot rely on its applicability to your specific problem without consulting your lawyer. Fiddler González & Rodríguez, P.S.C. and the members of the Labor Law Group assume no responsibility to inform you of additional changes in law or any other legal issues related to matters addressed in this email of which we may become aware after the date hereof. This newsletter is not intended to create an attorney-client relationship between you and our firm or any of our attorneys. If we are not already representing you, be mindful that your email communications to any of our lawyers will not be treated as privileged or confidential until you ask us to represent you, we first conduct a conflict of interest search, we agree to represent you and you sign an engagement letter from the law firm.

***IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the Internal Revenue Service, we inform you that any United States federal tax advice in this communication (including any attachments) is not intended or written by Fiddler González & Rodríguez, P.S.C. to be used, and cannot be used, for the purpose of (i) avoiding any penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. **

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