New Year Opens With Demise Of The NLRB’s “Poster” Rule And Further Delay For The DOL’s “Persuader” Rule

While 2014 is by most accounts predicted to be a robust regulatory year for the National Labor Relations Board (“NLRB”) and the Department of Labor (“DOL”), the initial start has commenced with only a sputter.  Effectively “dead,” after the passing of yesterday’s deadline for the NLRB to petition the U.S. Supreme Court to review decisions from the Fourth Circuit and the D.C. Circuit Courts of Appeal, is the NLRB’s controversial “poster” regulation.  As previously reported, in August 2011 the NLRB adopted a rule that required most private-sector employers to notify employees of their rights under the National Labor Relations Act by posting a notice where other employee notices are customarily posted, including on the employer’s website.  An employer’s failure to do so would have been considered an unfair labor practice.  The NLRB has decided not to seek review of that decision with the U.S. Supreme Court and, as a result, the  Circuit Courts’ decisions invalidating the poster rule will stand.

In a related vein, the DOL’s “persuader rule” has been delayed once again.  The “persuader rule” (June 2011 rule)  would require law firms and other “advisers” to publicly disclose the revenues they generate from advice related to labor organizing.  Currently, the “advice exception” prevents such disclosure.  The revised rule is now slated for “final action” this coming March.

Despite an early record of demise and delay, private employers should  watch carefully as the reconstituted Obama Administration NLRB and its newly confirmed General Counsel step into anticipated high gear – in tandem with the DOL – to expand union organizing rights by promoting a union-friendly regulatory and decision agenda.  One such anticipated regulation is the NLRB’s “ambush” or “quickie” election rule  that would substantially shorten the time between the filing of a union election petition and the election.  If ultimately promulgated, such a rule would adversely impact the ability of employers to be heard on pre- and post-election disputes.

Only time will tell if the predicted “sky’s the limit” NLRB and DOL agendas become a stark reality for employers, so stay tuned for updates.

— Carmen Plaza de Jennings and Jayne Benz Chipman

 

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