On May 7, 2013, the U.S. Court of Appeals for the District of Columbia Circuit struck down a National Labor Relations Board (“NLRB”) rule requiring both union and non-union employers to display posters informing employees of their right to form a union and engage in other concerted activity.
The U.S. Court of Appeals for the D.C. Circuit held that the NLRB rule was a violation of both the National Labor Relations Act’s (“NLRA”) “free speech” provision and the 1st Amendment of the Constitution. The majority opinion relied primarily on Section 8(c) of the NLRA, the so-called "free speech" provision which allows employers to advise employees of their view on unions as long as it is done in a non-coercive manner. In sum, the court held that the NLRB rule violated employers’ free speech rights by forcing them to display the posters or face charges of committing an unfair labor practice.
The NLRB adopted a rule in August 2011 that required millions of private employers to post a notice alerting employees to their rights under the NLRA, including their right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to choose not to do any of these activities.
The federal appeals court called the NLRB position hypocrisy because an employer’s failure to post the notice would be an unfair labor practice, despite the NLRA’s preservation and protection of the right of employers (and unions) not to speak.
The D.C. Circuit is not the first to reject the NLRB’s poster rule. In April 2012, a federal trial judge in South Carolina also ruled that the NLRB had no authority to require such a poster, a ruling currently being appealed by the NLRB to the U.S. Court of Appeals for the Fourth Circuit.
The full opinion is available here.
- Of Counsel
Caroline Musekamp's practice is concentrated in the area of labor and employment law. Caroline has extensive experience representing clients in employment litigation involving various employment claims, including ...
Topics/Tags
Select- Labor & Employment Law
- Arbitration
- Coronavirus
- Employment Law
- Labor Law
- Employee Benefits and Executive Compensation
- Discrimination
- Disability Discrimination
- Race Discrimination
- IRS
- OSHA
- Department of Labor
- NLRB
- Employer Policies
- Sexual Orientation Discrimination
- Litigation
- Americans with Disabilities Act
- Retirement
- Social Media
- Accommodation
- ERISA
- National Labor Relations Act
- National Labor Relations Board
- Employer Handbook
- Employment Litigation
- Reasonable Accommodation
- ACA
- Affordable Car Act
- Wage & Hour
- EEOC
- NLRA
- ADAAA
- Title VII
- Federal Arbitration Act
- Unions
- Employer Rules
- Sexual Harassment
- 401(k)
- Technology
- Privacy
- Transgender Issues
- Workplace Accommodations
- FMLA
- Employment Settlement Agreements
- Disability
- Workplace Violence
- Paycheck Protection Program
- Sixth Circuit
- Equal Employment Opportunity Commission
- Fair Labor Standards Act
- Securities Law
- Preventive Care Benefits
- Health Savings Account
- SECURE Act
- US Department of Labor Employee Benefits Security Administration
- Religion Discrimination
- Gender Identity Discrimination
- Posting Requirements
- Class Action Litigation
- Disability Law
- E-Discovery
- Evidence
- Benefits
- Overtime Pay
- Representative Election Regulations
- Family and Medical Leave Act
- Environmental Law
- Department of Justice
- Privacy Laws
- Healthcare Reform
- Older Workers' Benefit Protection Act (OWBPA)
- Telecommuting
- Electronically Stored Information
- Affirmative Action
- Compensable Time
- Equal Opportunity Clause
- Pregnancy Discrimination
- Security Screening
- Supreme Court
- Occupational Safety and Health Administration
- E-Discovery Case Law
- Electronic Data Discovery
- ESI
- Unemployment Insurance Integrity Act
- American Medical Association
- Attendance Policy
- Return to Work
- Seniority Rights
- Classification
- Confidentiality
- Disability Leave
- Equal Pay
- Fair Minimum Wage
- Federal Minimum Wage
- Genetic Information Discrimination
- Media Policy
- Misclassification
- National Origin Discrimination
- Retaliation
- Social Media Content
- State Minimum Wage
- Wage Increase
- Employment Incentives
- HIRE Act
- Social Security Tax
- Taxation
- Antitrust
Recent Posts
- The Practical Employment Law Podcast: The Future of Arbitration
- The Practical Employment Law Podcast: The Gig Economy
- The Practical Employment Law Podcast: Labor & Employment Law Update Week of 3/7/2022
- The Practical Employment Law Podcast: Labor & Employment Law Update Week of 2/7/2022
- Supreme Court Re-Implements Stay of Vaccine Mandate for Employers, Upholds CMS Mandate
- The Practical Employment Law Podcast: Twelve Thoughts About Vaccine Mandates
- Update on Status of Federal Contractor Mandate and OSHA’s ETS
- The Practical Employment Law Podcast: Employment Law Advice from Ebenezer Scrooge
- Update on Status of All Federal Vaccine Mandates
- The Practical Employment Law Podcast: Federal Vaccine Mandate(s) Update