We’ve been following the legal challenges to the NLRB’s notice-posting rule, which would require virtually all private-sector employers to post a notice informing employees of their right to join a union, among other rights under the National Labor Relations Act. Today, the United States District Court for the District of Columbia issued its decision in this closely-watched case, upholding the rule in part but severing certain provisions as unlawful.

The rule as issued by the NLRB had three main components—1. a requirement to post a physical notice containing language drafted by the NLRB; 2. a provision creating a new unfair labor practice for failing to post the notice; and 3. a provision allowing the NLRB to extend the six-month statute of limitations if an employer failed to post the notice. Today’s decision upholds the notice-posting requirement, but strikes down the provisions that create a new ULP and extend the statute of limitations.

While the court struck down most of the enforcement mechanisms, employers who fail to post the notice may still face consequences before the Board. The decision makes it clear that, while the blanket ULP created by the rule was unlawful, the Board may make an individualized determination that failure to post the notice was unlawful in a specific case (e.g. where the employer refused to post the notice when faced with a union organizing drive).

Unless the Board postpones the effective date in the event an appeal is filed, all employers must post the NLRB notice by April 30, 2012.

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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.