NLRB Poster Requirement Struck
Down by D.C. Court
Proposed requirement to
post notice of employee rights violates employer’s First Amendment rights, court
A ruling viewed by employer groups as a big victory was
issued by the U.S. Court of Appeals for the District of Columbia on May 7, 2013.
The D.C. Circuit Court struck down a National Labor Relations Board (NLRB)
requirement that employers display a poster detailing employee rights under the
National Labor Relations Act.
Since September, 2011, the NLRB and employer groups have
been fighting in court about whether the NLRB could force employers to explain
to employees only the benefits, and none of the adverse consequences, of
belonging to a union.
In April 2012, Sacks Tierney advised you that the
requirement was put on hold because of ongoing litigation and the concerns about
the posting. Now, although the Circuit Court of
Appeals has issued its ruling, the litigation may not be over: other litigation
is pending and the issue may ultimately need to be resolved by the Supreme
One of the major concerns with the NLRB’s requirement
was that, if an employer failed to display the poster, it would be found to have
engaged in an unfair labor practice. The Court found this to constitute an
improper infringement on employer’s First Amendment rights of free speech.
This case is part of a larger struggle by the NLRB to
remain relevant. For now, employers need not display the NLRB poster. Sacks
Tierney will continue to provide updates as this issue unfolds.