Employers Should Prepare for New Rulemaking Efforts

Employers Should Prepare for New Rulemaking Efforts

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Starting in 2011, the National Labor Relations Board is starting efforts to revive their notice posting rule for the workplace.  This rule, which is known as the Notification of Employee Rights under the National Labor Relations Act, would have mandated that employers post an open notice of employee rights under the National Labor Relations Act.

The rule revision has gone through difficult times, especially since May 2013.  At this time, a case involving the National Association of Manufacturers in the U.S. Court of Appeals Circuit for D.C.  indicated bad news for revision opportunities.  In that case, the enforcement mechanisms under the law were determined to be unlawful.  Four months after that, the court dismissed a petition from the NLRB to review.

In June 2013, the NLRB was struck down again, when the Fourth Circuit determined that the rule was also unlawful.  In that case, which involved the Chamber of Commerce, the court found that the rule went beyond the Board’s rulemaking capabilities granted by Congress.  When the National Labor Relations Board pushed for a rehearing later that summer, they were denied.

After hitting so many walls, the Board’s only opportunity to push for the rule was at the Supreme Court.  The requests for this would have had to be in by January 2, 2014, and the Board missed the opportunity to act by that strict deadline.  In a sense, this means that the issue will be stalled legally at least for the time being.

Employers shouldn’t rest easy, though.  It’s a more likely scenario that the Board is choosing which of its regulatory battles to fight.  The Board recently dismissed an appeal involving a district court case which invalidated the expedited representation election rule that was first issued in December of 2011.  This move indicates that the door is open for a restricted board to issue another more in-depth rule regarding election procedures.  Some individuals believe this indicates the Board’s sending all resources into the process of revising and then reissuing the election rule.  This could be a sign that while employers can consider the previous issue put to bed for the moment, it’s very likely that a bigger legal battle is coming down the pike on rulemaking instead.

Employers would be wise to keep an eye out for updates on rulemaking and the National Labor Relations Board.  Big changes may be in the works that could trickle down to many businesses around the country.