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April 30 NLRB Posting Rule on Hold – Court Delays Indefinitely

Labor & Employment Law Alert David B. Kern, Dawn C. Valdivia, Fred Gants

Late-breaking developments over the past several days have put a hold on the National Labor Relations Board's ("NLRB" or "Board") posting rule. Employers need not post by April 30.

Last Friday, Judge David Norton of the U.S. District Court for the District of South Carolina held that the NLRB exceeded its authority by publishing its rule requiring most private sector employers to post a Notice of Employee Rights under the National Labor Relations Act ("NLRA" or "Act"). Our client update describing the Board's rule can be found here.

Judge Norton agreed with the arguments of the U.S. Chamber of Commerce and the South Carolina Chamber of Commerce that the NLRA does not grant the Board authority to issue such a rule. The Court noted that the Board's rulemaking authority extends only to those rules "necessary to carry out" the other provisions of the NLRA. Because the Board's role is to react to alleged violations of the Act and not to proactively impose obligations on employers prior to alleged violations, the Court found that the Board's rulemaking in this instance was not authorized by the Act.

On March 2, 2012, a different district court upheld most provisions of the Board's notice rule. That decision, by District Judge Amy Berman Jackson of the Federal District Court for the District of Columbia, was described in our March 2012 client update here. That decision was immediately appealed to the Court of Appeals for the D.C. Circuit.

These conflicting court decisions raised serious questions regarding the April 30 effective date. Those questions were resolved by the Court of Appeals for the D.C. Circuit in an April 17, 2012 decision blocking the rule from taking effect. The Court held that the uncertainty surrounding the rule's validity cut in favor of enjoining the rule while the Court addressed the merits of the appeal. This means that employers are not required to post or distribute the Notice of Employee Rights unless they are already required to do so as a result of their status as a government contractor.

If you have questions regarding the Board's final rule or these recent federal court rulings, please contact David B. Kern at (414) 277-5653 / [email protected], Dawn Valdivia at (602) 229-5291 / [email protected], Fred Gants at (608) 283-2618 / [email protected] or your Quarles & Brady LLP attorney.

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