A regulation issued by the National Labor Relations Board requiring most private-sector employers to post certain notices informing employees of their rights under the National Labor Relations Act (“NLRA”) will not go into effect as scheduled on April 30. The U.S. Court of Appeals for the District of Columbia Circuit on April 17 issued an injunction putting the rule on hold until the court has fully considered the merits of a legal challenge brought by the Coalition for a Democratic Workplace (“CDW”), of which AGC is a member, and its co-plaintiffs. With oral argument not set until September, this means that the regulation will not go into effect – and employers need not comply with it – until fall at the very earliest, if at all. The rule could become permanently invalidated by the court or rescinded by the Board later.
CDW and its co-plaintiffs requested the injunction from the appeals court after the district court in DC upheld the posting mandate provisions of the regulation and invalidated the penalty provisions on March 2. In a separate challenge brought by the U.S. and South Carolina Chambers of Commerce, a federal district court in South Carolina issued an inconsistent opinion on April 13, finding that the Board exceeded its authority under the NLRA and invalidating the rule in its entirety.
The Board has issued a statement confirming that its regional offices will not implement the rule pending the resolution of the issues in court. The statement also expressed the agency’s current intent to continue to defend its actions and otherwise litigate the matter.
These cases and the Board’s regulation should not be confused with similar but separate regulations by the Department of Labor and FAR Council effectively requiring federal contractors to post a similar notice of employee rights under the NLRA. That rule remains in effect.
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