On December 21, 2010, the NLRB announced that it has submitted a Notice of Proposed Rulemaking to the Federal Register. The proposed rule would require all employers covered by the National Labor Relations Act — which is almost all private sector employers in the United States — to post a notice informing employees of their rights under the NLRA. Those rights include the right to join a union and bargain collectively. The Board’s proposed notice is similar to the notice required by the Department of Labor for federal contractors regarding employees’ rights under the NLRA.

• The rule would require all employers covered by the NLRA to post the notice, even if their employees are not represented by a union.

• Employers that regularly communicate with employees via e-mail or electronic means would have to post the notice electronically in addition to the physical posting.

• Failure to post the notice would be considered an unfair labor practice by the Board and could extend the statute of limitations for filing charges involving other ULP allegations.

NLRB Member Brian Hayes dissented from the issuance of the proposed rule, stating that “the Board lacks the statutory authority to promulgate or enforce the type of rule” proposed. Public comment is invited on the proposed rule, including the issue of the Board’s authority raised by Member Hayes’ dissent, and is open for 60 days (until February 20, 2011). Click here to read the Board’s press release announcing the proposed rule and here to read a fact sheet prepared by the NLRB. We will continue to monitor this proposed rule and report on developments as they occur.

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Photo of Justin Keith Justin Keith

Justin F. Keith represents employers in all areas of labor and employment law—including reductions in force, litigation of discrimination, harassment, whistleblower, and retaliation claims, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

Justin Co-Chairs

Justin F. Keith represents employers in all areas of labor and employment law—including reductions in force, litigation of discrimination, harassment, whistleblower, and retaliation claims, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

Justin Co-Chairs the firm’s Labor & Employment Practice’s Labor-Management Relations group and advises clients in all areas of traditional labor law, including union organizing campaigns, collective bargaining negotiations, unfair labor practice charges and representation case proceedings before the NLRB, union avoidance strategy and training, strike response and contingency planning, grievance arbitration proceedings, and appellate litigation before the NLRB and the Courts of Appeals. Justin was co-counsel to New Process Steel in the landmark Supreme Court case, New Process Steel v. NLRB, 560 U.S. 674 (2010). He is also a contributing editor of The Developing Labor Law, the leading treatise on U.S. labor law, and a frequent speaker to legal and industry groups on labor and employment issues.

Justin has litigated dozens of wage and hour class actions brought under the Massachusetts Wage Act and nationwide collective actions under the Fair Labor Standards Act. He represents employers across a broad spectrum of industries, including retail, transportation, delivery services, and telecom services in nationwide class and collective actions brought throughout the country.

Justin regularly provides counsel to senior management and human resource personnel on employment law compliance matters, such as reductions in force, leaves of absence, exempt status classification under the FLSA and state law, employee discipline, sexual harassment, discrimination and retaliation, and restrictive covenant agreements.