In Another Blow to NLRB, Court Says Bosses Don’t Have To Notify Workers of Rights

Moshe Z. Marvit May 8, 2013

Thanks to a district court ruling this week, employers could challenge requirements to put up posters like this one notifying workers of their rights. (Posters from the Labor Law Compliance Center).

Yes­ter­day, a con­ser­v­a­tive pan­el of the D.C. Cir­cuit Court of Appeals issued a deci­sion that sharply under­mines the pow­er of the Nation­al Labor Rela­tions Board (NLRB) and, more broad­ly, of the gov­ern­ment as a whole to reg­u­late busi­ness. The rul­ing marks the sec­ond time this year that the court has rad­i­cal­ly under­cut the NLRB. In Jan­u­ary, the court held that Obama’s 2012 recess appoint­ments to the board were invalid, effec­tive­ly undo­ing more than a year of NLRB decisions.

Now, the body often referred to as the sec­ond most impor­tant court in the land, after the Supreme Court,” has held that the NLRB can­not require employ­ers to post notices inform­ing employ­ees of their labor rights. The deci­sion, which comes less than three weeks after lack of reg­u­la­to­ry enforce­ment led to a fer­til­iz­er plant explo­sion in West, Texas that killed 14 and left about 200 injured, opens the door for busi­ness­es to chal­lenge require­ments that work­ers work­ers be informed of their health, safe­ty and employ­ment rights.

Cur­rent­ly, numer­ous fed­er­al laws oblig­ate employ­ers to noti­fy work­ers about a host of rights, by either post­ing notices in the work­place or pro­vid­ing work­ers with doc­u­men­ta­tion. For exam­ple, busi­ness­es must noti­fy employ­ees about dan­ger­ous chem­i­cals in the work­place under the Occu­pa­tion­al Safe­ty and Health Act (OSHA); of their wage and hour rights under the Fair Labor Stan­dards Act (FLSA); of their insur­ance and pen­sion plans under the Employ­ee Retire­ment Income Secu­ri­ty Act (ERISA); of their rights not to be dis­crim­i­nat­ed against because of their race, sex, reli­gion, age, dis­abil­i­ty, and oth­er pro­tect­ed cat­e­gories under Title VII, the Age Dis­crim­i­na­tion in Employ­ment Act (ADEA), and the Amer­i­cans with Dis­abil­i­ties Act (ADA); and of their right to take leave from work for cer­tain med­ical or fam­i­ly-relat­ed rea­sons under the Fam­i­ly and Med­ical Leave Act (FMLA).

In light of all this, a rule passed by the NLRB in 2011 requir­ing employ­ers to post notice of employ­ee labor rights broke no new legal ground. How­ev­er, in a bizarre deci­sion, the dis­trict court held that the poster require­ment vio­lates the First Amend­ment rights of employers. 

When the NLRB pro­posed the law in 2010, its ratio­nale was a dimin­ish­ing aware­ness of labor rights among work­ers. The board wrote:

The Board was estab­lished to ensure that employ­ers and, lat­er, unions respect the exer­cise of employ­ees’ rights under the NLRA [Nation­al Labor Rela­tions Act]. For employ­ees to exer­cise their NLRA rights, how­ev­er, they must know that those rights exist. There is rea­son to think that most do not.

The board attrib­uted the grow­ing igno­rance of work­place rights to the declin­ing reach of unions that once edu­cat­ed employ­ees as well as the increase in immi­grant and high-school work­ers. In one study cit­ed by the board, three-quar­ters of high-school stu­dents sur­veyed did not know the basic tenets of the NLRA. In anoth­er, when high school stu­dents were asked whether work­ers have the right to decide whether a com­pa­ny becomes union­ized, more than two-thirds either answered, incor­rect­ly, no” or said they did not know.

Against this back­ground, the board took the rel­a­tive­ly rare step of issu­ing a pro­posed rule, and after receiv­ing 7,034 com­ments, a final rule in 2011. The rule sought to place labor rights with­in the set of rights of which employ­ers must noti­fy their employ­ees. For the most part, employ­ers com­ply with these noti­fi­ca­tion laws with­out com­plaint. How­ev­er, in a reminder of the extent to which many Amer­i­can employ­ers loathe even the pos­si­bil­i­ty of unions, the Nation­al Asso­ci­a­tion of Man­u­fac­tur­ers (which spent the 20th cen­tu­ry fight­ing labor rights leg­is­la­tion) filed suit over the new rule, argu­ing that it vio­lat­ed the First Amend­ment rights of over 6 mil­lion employers.

The D.C. Circuit’s broad rul­ing strik­ing down the NLRB rule opens the door for employ­ers to chal­lenge oth­er notice require­ments. The court pur­port­ed­ly exam­ined Sec­tions 6 and 8© of the NLRA, but real­ly per­formed an aggres­sive and activist First Amend­ment analy­sis, The deci­sion states that in requir­ing employ­ers to post notice of employ­ee rights, the gov­ern­ment engages in com­pelled speech in vio­la­tion of the First Amend­ment. In so doing, the court priv­i­leged the free speech rights of cor­po­ra­tions above the free­dom of asso­ci­a­tion rights of indi­vid­ual work­ers. Though this was not a case deal­ing specif­i­cal­ly with a ques­tion of the indi­vid­ual rights of cor­po­ra­tions, it fol­lowed a dis­turb­ing trend of the courts to place rights of cor­po­ra­tions above the rights of individuals.

Though the decision’s offi­cial hold­ing con­cerns only the pro­vi­sions of the NLRA, the rea­son­ing would also seems to cov­er, for instance, OSHA posters that tell work­ers of their right to con­fi­den­tial­ly report work­place haz­ards to reg­u­la­to­ry agen­cies and not suf­fer employ­er retal­i­a­tion. These posters, along with the many oth­er noti­fi­ca­tions of rights, serve as impor­tant reminders to work­ers that the law con­fers upon them cer­tain rights that employ­ers may not abridge.

Since the West, Texas dis­as­ter, there has been broad dis­cus­sion of Amer­i­ca’s unac­cept­ably high lev­els of work­place fatal­i­ties. Should any new work­place safe­ty reg­u­la­tions or enforce­ment mech­a­nisms result, this new deci­sion could ren­der them moot. And if employ­ers now chal­lenge their respon­si­bil­i­ty to post work­ers’ health and safe­ty rights, the deci­sion could move the coun­try back­ward, mak­ing Amer­i­can work­places far less safe.

Moshe Z. Mar­vit is an attor­ney and fel­low with The Cen­tu­ry Foun­da­tion and the co-author (with Richard Kahlen­berg) of the book Why Labor Orga­niz­ing Should be a Civ­il Right.

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