By
Jim
Butler & Scott
Brink
of the Global Hospitality
Group®
Author of www.HotelLawBlog.com
September 13, 2011
A highly
controversial new law, which many employers believe will unfairly
foster union
organizing, requires that employers post notices of employee rights --
including the right to organize, join or discuss the activities of a
union. The
law goes into effect on November 14, 2011.
Employers
must comply with the new rule whether they have a unionized work force
or not.
My
partner, labor and employment lawyer Scott Brink, has outlined in his
article
below the requirements the new rule imposes on employers.
Scott and
the labor and employment lawyers of JMBM's Global Hospitality
Group® have
represented the hospitality industry in all aspects of labor and
employment law
including union prevention, collective bargaining negotiations, and
defense of
unfair labor practice charges before the NLRB. If you have questions
about how
this new rule will impact your hotel business, we can help.
Labor and Employment Alert: New Law
Requires Employers to
Post Employee Rights
Notice by November 14, 2011
NLRB Publishes Final Rule for Notification of Employee
Rights
by
Scott Brink | Hotel
Lawyer, JMBM Global Hospitality
Group®
The
National Labor Relations Board ("NLRB") published in the Federal
Register last week a Final Rule requiring most private-sector employers
-- even
if not unionized -- to notify employees of their rights under the
National
Labor Relations Act ("NLRA") by posting paper and, where applicable,
electronic notices identifying those rights.
The
Rule, which was highly controversial due to the perception of some
employers
that it is intended to unfairly foster union organizing, will take
effect
within 75 days. Employers covered by the NLRA should begin posting the
notice
on November 14, 2011. Employers engaged in interstate commerce (which
includes
employers who buy, sell, or ship more than $50,000 of goods or services
out of
state) typically fall within the jurisdiction of the NLRA.
In
contrast to most other federal and state employment laws, the NLRA does
not
require notice to employees of their rights under it. The new rule
changes this
and requires employers to give notice of employee rights, such as:
- The
right to organize a union to negotiate with an employer concerning
wages, hours and other terms and conditions of employment
- The
right to form, join or assist a union
- The
right to discuss terms and conditions of employment or union organizing
with co-workers or a union.
The
11-by-17-inch notice required by the Rule is similar in content and
design to a
notice of NLRA rights that must be posted by federal contractors under
a
Department of Labor rule. Additionally, covered employers with
intranets are
required to distribute the notice in electronic form if the intranet is
used to
post personnel policies and procedures. The NLRB will provide an
acceptable
form of the notice on November 1.
The
NLRB published the following "questions and answers" with the new
Rule:
Does
my company have to post the notice?
The posting requirement
applies to all private-sector
employers (including labor unions) subject to the National Labor
Relations Act,
which excludes agricultural, railroad and airline employers. In
response to
comments received after the proposed rule was announced, the Board has
agreed
to exempt the U.S. Postal Service for the time being because of that
organization's
unique rules under the Act.
When
will the notice posting be required?
The final rule takes effect 75 days
after it is posted in
the Federal Register, or on November 14, 2011.
There
is no union in my workplace. Will I still have to post the notice?
Yes. Because NLRA rights
apply to union and non-union
workplaces, all employers subject to the Board's jurisdiction (aside
from the
USPS) will be required to post the notice.
I
am a federal contractor. Will I have to post the notice?
The Board's notice posting
rule will apply to federal
contractors, who already are required by the Department of Labor to
post a
similar notice of employee rights. A contractor will be regarded as
complying
with the Board's notice posting rule if it posts the Department of
Labor's
notice.
I
operate a small business. Will I have to post the Board's notice?
The rule applies to all
employers subject to the Board's
jurisdiction, other than the U.S. Postal Service. The Board has chosen
not to
assert its jurisdiction over very small employers whose annual volume
of
business is not large enough to have a more than a slight effect on
interstate
commerce. The jurisdictional standards are summarized in the rule.
How
will I get the notice?
The Board will provide
copies of the notice on request at
no cost to the employer beginning on or before November 1, 2011. These
can be
obtained by contacting the NLRB at its headquarters or its regional,
sub-regional, or resident offices. Employers can also download the
notice from
the Board's website and print it out in color or black-and-white on one
11-by-17-inch paper or two 8-by-11-inch papers taped together. Finally,
employers can satisfy the rule by purchasing and posting a set of
workplace
posters from a commercial supplier.
What
if I communicate with employees electronically?
In addition to the physical
posting, the rule requires
every covered employer to post the notice on an internet or intranet
site if
personnel rules and policies are customarily posted there. Employers
are not
required to distribute the posting by email, Twitter or other
electronic means.
Many
of my employees speak a language other than English. Will I still have
to post
the notice?
Yes. The notice must be
posted in English and in another
language if at least 20% of employees are not proficient in English and
speak
the other language. The Board will provide translations of the notice,
and of
the required link to the Board's website, in the appropriate languages.
Will
I have to maintain records or submit reports under the Board's rule?
No, the rule has no record-keeping or
reporting
requirements.
How
will the Board enforce the rule?
Failure to post the notice
may be treated as an unfair
labor practice under the National Labor Relations Act. The Board
investigates
allegations of unfair labor practices made by employees, unions,
employers, or
other persons, but does not initiate enforcement action on its own.
What
will be the consequences for failing to post the notice?
The Board expects that, in
most cases, employers who fail
to post the notice are unaware of the rule and will comply when
requested by a
Board agent. In such cases, the unfair labor practice case will
typically be
closed without further action. The Board also may extend the 6-month
statute of
limitations for filing a charge involving other unfair labor practice
allegations against the employer. If an employer knowingly and
willfully fails
to post the notice, the failure may be considered evidence of unlawful
motive
in an unfair labor practice case involving other alleged violations of
the
NLRA.
Can
an employer be fined for failing to post the notice?
No, the Board does not have the
authority to levy fines.
Was
there a public comment period? What was the response?
The Board received more
than 7,000 public comments after
posting a notice of the proposed rule in the Federal Register. A
detailed
description of the comments and the Board's response to them, including
responsive modifications to the rule, may be found in the Preamble to
the Final
Rule.
The
full text of the Rule can be found here:
Final
Rule for Notification of Employee Rights
For
more information on the Rule and its application to your business,
contact
Scott Brink.
________________________
This
is Jim Butler,
author of www.HotelLawBlog.com
and
hotel lawyer, signing
off. We've done
more than $60 billion of hotel transactions and have developed
innovative
solutions to unlock value from hotels. Who's your hotel lawyer?
________________________
Scott
Brink is a senior member of JMBM's Global Hospitality Group® and a
partner in
JMBM's Labor & Employment Law Department. Scott is a management
labor
lawyer with more than two decades of experience representing employers
in all
aspects of labor relations and employment law including union
prevention,
collective bargaining negotiations, defense of unfair labor practice
charges
before the NLRB, wrongful discharge litigation, individual and class
action
employment discrimination and wage-and-hour claims, sexual-harassment
litigation, arbitrations, personnel policies, California wage and hour
law, and
employee discipline and discharge. An experienced trial attorney, Scott
has
litigated a number of high-profile and complex cases involving a wide
range of
labor and employment law matters. For more information, contact Scott
Brink at [email protected]
or +1
(310) 785-5365.
________________________
Our
Perspective. We
represent hotel lenders,
owners and investors. We have helped our clients find business and
legal
solutions for more than $60 billion of hotel transactions, involving
more than
1,300 properties all over the world. For more information, please
contact Jim
Butler at [email protected]
or +1
(310) 201-3526.
Jim
Butler is a founding partner of JMBM, and Chairman of its Global
Hospitality
Group® and Chinese Investment Group™. Jim is one of the top
hospitality
attorneys in the world. GOOGLE "hotel lawyer" and you will see why.
Jim
and his team are more than "just" great hotel lawyers. They are also
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help find the right operator or capital provider. They know who to call
and how
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Global Hospitality Group®
The
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Jeffer Mangels Butler & Mitchell (JMBM) comprise the premier
hospitality
practice in a full-service law firm and are the authors of the Hotel Law Blog. We
represent hotel owners, developers, investors and lenders and have
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