We’ve been following the NLRB’s notice-posting rule, which would require nearly all private-sector employers to post a Notice of Employee Rights as of April 30, 2012. As we reported, on March 2 the United States District Court for the District of Columbia upheld the Board’ authority to require the posting of the notice, while striking down many of the rule’s enforcement mechanisms. On March 5, the court refused to enjoin the rule pending resolution of an appeal filed with the D.C. Circuit, setting the stage for the rule to take effect at the end of the month.

However, late yesterday afternoon, in another case challenging the rule, the United States District Court for the District of South Carolina struck down the rule in its entirety. Analyzing the case under Step One of Chevron, the court held that the Board lacked statutory authority to issue the rule requiring notice posting. Click here to read the court’s opinion in Chamber of Commerce v. NLRB.

Absent further action by the court, yesterday’s ruling will likely block implementation of the rule. We anticipate that the Board may ask the court to stay its ruling pending resolution of the appeal by the D.C. Circuit and will continue to monitor and report on this important issue.

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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.