NLRB Poster Requirement Struck Down by D.C. Court

Proposed requirement to post notice of employee rights violates employer’s First Amendment rights, court rules

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 Court.

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.