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
- Employment Law
- Wage & Hour
- Discrimination
- Labor Law
- EEOC
- Americans with Disabilities Act
- Department of Labor
- Artificial Intelligence
- Coronavirus
- Compliance
- NLRB
- OSHA
- Pregnancy Discrimination
- Title VII
- Workplace Violence
- Non-Compete Agreements
- Reasonable Accommodation
- Religion Discrimination
- FLSA
- Supreme Court
- Department of Justice
- NLRA
- National Labor Relations Board
- Diversity
- Privacy
- Employee Benefits and Executive Compensation
- Performance Improvement Plans
- Department of Homeland Security
- Immigration and Customs Enforcement
- Foreign Nationals
- Immigration and Nationality Act
- Arbitration
- Federal Trade Commission
- FMLA
- Overtime Pay
- Employment Litigation
- Workplace Accommodations
- Inclusion
- LGBTQ+
- Litigation
- IRS
- Social Media
- Medical Marijuana
- Employer Policies
- Disability Discrimination
- Retirement
- National Labor Relations Act
- Accommodation
- Sexual Orientation Discrimination
- Race Discrimination
- Employer Handbook
- ERISA
- ADAAA
- Medical Cannabis Dispensaries
- Unions
- ACA
- Affordable Car Act
- Employer Rules
- Whistleblower
- Sexual Harassment
- Technology
- United States Supreme Court
- Federal Arbitration Act
- Transgender Issues
- Disability
- 401(k)
- Employment Settlement Agreements
- Sixth Circuit
- Equal Employment Opportunity Commission
- Fair Labor Standards Act
- Benefits
- Gender Identity Discrimination
- Paycheck Protection Program
- Posting Requirements
- Class Action Litigation
- Disability Law
- E-Discovery
- Evidence
- Securities Law
- Family and Medical Leave Act
- Environmental Law
- Preventive Care Benefits
- Health Savings Account
- Privacy Laws
- SECURE Act
- US Department of Labor Employee Benefits Security Administration
- Healthcare Reform
- Representative Election Regulations
- Older Workers' Benefit Protection Act (OWBPA)
- Affirmative Action
- Compensable Time
- Electronically Stored Information
- Equal Opportunity Clause
- Security Screening
- Telecommuting
- E-Discovery Case Law
- Electronic Data Discovery
- ESI
- Occupational Safety and Health Administration
- American Medical Association
- Attendance Policy
- Return to Work
- Seniority Rights
- Unemployment Insurance Integrity Act
- 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
- AI in Hiring: The Promise, the Pitfalls, and the Response
- Two Big Beautiful Tax Deductions: What Employers Need to Know
- OSHA’s Updated Inspection Program: What Employers Should Know and Expect
- SCOTUS Lowers Bar for Reverse Discrimination Claims
- Revisiting ADA Compliance: Lessons from a Recent Court Decision
- Federal Court Strikes Down Part of EEOC Rule Requiring Accommodations for Elective Abortion Under the PWFA
- More on Equal Opportunity: Executive Order Seeks to End Disparate Impact Liability to promote Equal Opportunity
- PIP This: The Expansion of Actionable Adverse Employment Decisions in the Wake of Muldrow v. City of St. Louis
- The Independent Contractor Tug-of-War: Navigating the Latest DOL Shifts
- ICE Raids and Audits – What’s an Employer to Do