An appeals court recently delayed a controversial measure that could require businesses to inform workers of their labor rights. If passed, what would the measure mean for employers and employees?

In December 2010, the National Labor Relations Board (NLRB) began proceedings to require that private employers post employee rights in a location accessible to all workers. This movement was prompted by NLRB findings that certain groups of employees, such as recent immigrants and younger workers, were unclear about their rights.

In August 2011, the NLRB, which handles union and labor-related law enforcement, passed a regulation requiring private companies to mount a poster enumerating workers’ rights to organize. The National Association of Manufacturers (NAM) and the United States Chamber of Commerce sued in federal court to challenge the legality of this rule.

More than 6 million businesses would be required to hang the 11” x 17” poster in a conspicuous place accessible to all employees, such as a break room. Agricultural and farming businesses, businesses subject to the Railway Labor Act, and government-owned corporations and government businesses, such as public schools and libraries, would not be required to post the notice. Employers must display alternate language versions of the poster if 20 percent or more of their employees speak a language other than English.

The poster describes rights related to collective bargaining, spelling out the legal actions an employee may take to negotiate concerns over wages, hours and other employment terms and conditions, in addition to the legal prohibitions governing employer and union actions. (The full text of the poster is available on the NLRB site HERE.)

Groups opposed to the requirement, including the National Federation for Independent Business (NFIB), claim that the Poster Notice Rule oversteps the NLRB’s authority under the National Labor Relations Act.

A judge in Washington, D.C. ruled in favor of the NLRB, while a South Carolina judge ruled against it, stating that the NLRB is intended to be a “reactive, quasi-judicial body” and that the poster requirement “contravened the statutory scheme established by Congress,” as reported by Employment Law Daily. On appeal in the D.C. case, a circuit court judge approved an injunction against the NLRB’s planned April 30, 2012, compliance date.

The NFIB arguments against the poster claim that employers who fail to post the notice “would be slapped with ‘unfair labor practice.’ This could subject a business to increased scrutiny, likelihood of investigation and an indefinite expansion of the statute of limitations for filing any other unfair labor practice charge.” The NFIB also maintains that “small businesses shouldn’t have to advertise for Big Labor. They deserve to run their business how they see fit.”

David Barron, an attorney in one of the lawsuits, told Home Channel News that “although most of the ‘rights’ listed in the poster are well established, there are some that are controversial.”

As an example, he noted past disagreements between employers and labor over wearing apparel promoting unions. Businesses maintain the right to govern these types of clothing to enforce compliance with dress codes and safety or sanitation concerns. “The poster could encourage more conflict in this area as employees may incorrectly interpret the poster as allowing them to wear pro-union paraphernalia in the workplace without limitation.”

The NLRB and its supporters claim that the poster requirement does not exceed the Board’s authority, but simply fulfills workers’ education needs. “We continue to believe that requiring employers to post this notice is well within the Board’s authority, and that it provides a genuine service to employees who may not otherwise know their rights under our law,” NLRB Chairman Mark Gaston Pearce told Politico.

Arguments in the appeal have been rescheduled for September 2012.