President
Obama continues his support of big labor with a first of its kind
mandatory employer posting requirement designed to advise employees how
to form or affiliate with a labor union. If you are a federal
contractor or sub-contractor - or are thinking about becoming one - we
urge you to read about this important development.
Background.
Shortly after being sworn in, President Obama signed a series of
pro-labor Executive Orders. Though Executive Orders have the
force of law, they are written by the President without any direct
involvement of the Congress.
One
of those orders was Executive Order 13496. this Executive Order
requires federal contractors and sub-contractors to post a government
notice informing employees of their rights under the National Labor
Relations Act ("NLRA"), such as their right to form and join a
union. While this seems innocuous, there are significant
implications. Big labor is no doubt happy about the prospect that
its ranks could be enlarged considerably as thousands of private sector
workers employed under federal contracts receive information about how
to form or join a union. This is the first time that a private
sector employer has ever had to post such a notice.
Which contracts are covered?
On May 20, 2010, the United States Department of Labor ("DOL")
published its final regulations implementing Executive Order
13496. Under the regulations, federal agencies must include a
clause requiring employer posting of the new notice in all contracts
for the purchase, sale, or use of personal property or non-personal
services that are solicited on or after June 21, 2010, and are for an amount in excess of $100,000.
In addition, a prime contractor with a federal contract containing the
clause must include the notice posting requirement in each of its sub-contracts where the amount of the sub-contract is in excess of just $10,000.
What does the Notice say?
The required notice states that the NLRB guarantees the right of
employees to organize and bargain collectively with their employers,
and to engage in other protected concerted activity. It also very
generally states that employees covered by the NLRA are protected from
certain types of employer and union misconduct. Importantly, the
Notice clearly informs employees that they should contact the National
Labor Relations Board ("NLRB") if they have any questions about
specific rights that may apply to their particular workplace or if they
wish to proffer so-called Unfair Labor Practice charges against their employer or the union.
Certain
employee rights relating to union organizing are spelled out in the
notice, including the right to join or assist a union, to bargain
collectively through a representative of their choosing, to discuss the
terms and conditions of employment with co-workers or a union, to
engage in concerted activities with co-workers, to strike and picket,
and to refrain from any of these activities.
Finally,
the Notice informs employees of certain employer or union practices
that are illegal under the NLRA such as job threats for either engaging
in union activity, asking employees about this union activity or
sympathies or refusing to engage in union activity.
Where must I post?
The regulations require the Notice to be posted in the covered
employer's facilities in a conspicuous place where it will be readily
seen by employees, including areas where the employer posts notices to
employees about the terms and conditions of employment. If an
employer normally posts notices to employees electronically, it must
post the required notice electronically in addition
to posting it physically in the workplace. Further, where a
significant portion of a contractor's workforce is not proficient in
English, the contractor must also provide the Notice in the language
the employees speak.
How will the law be enforced?
Under the regulations, the DOL's Office of Federal Contract Compliance
Programs ("OFCCP") is authorized to conduct compliance evaluations to
determine whether covered contractors and sub-contractors are properly
posting the employee notice. The regulations also authorize
employees of a covered contractor or sub-contractor to file a complaint
with the OFCCP. If an investigation reveals non-compliance with
the posting requirement, the OFCCP may refer the matter to the Office
of Labor-Management Standards for the initiation of administrative
enforcement proceedings. Unions wishing to organize a particular
workforce will work hand in hand with the government to report and
prosecute errant contractors.
Where can I get a copy of the Notice?
Copies can be obtained from either the contracting agency or from the
DOL. It may also be downloaded from the DOL's website.
(Click here to see the DOL Poster).
Employers
may reproduce and use exact duplicate copies of the Notice, and may use
posters from commercial services that consolidate into one poster the
new NLRA Notice and notices required by other federal employment laws.
What can I do now?
Employers covered by this regulation will want to become informed of
their rights and responsibilities under the NLRA. This training
is essential because this is a complex and nuanced area of law where
many of the rules are counter intuitive. It's easy for uninformed
supervisors and managers alike to make significant and costly mistakes
when talking about unions or responding to an effort by a union or
employees to organize a workforce. Certain employer actions, such
as firing union supporters, carry substantial financial exposure.
Most
non-union employers have little familiarity with the reach of the NLRA
and its potentially significant impact on employer operations.
For example, the new Obama NLRB is taking a very aggressive approach
toward what a non-union employer may lawfully say in an employee
handbook on a wide variety of subjects unrelated to union organizing.
We
recommend that you consider two things: (i) have your handbook
and personnel policies reviewed for compliance by an expert in this
area of the law (small changes can make a big difference); and (ii)
train all managers and supervisors about their rights and
responsibilities under this law so they don't unwittingly make mistakes
that can be costly. There is a tremendous amount that managers
and supervisors may say on the subject without running afoul of the law.
Our
labor relations team is ready to assist you in scheduling this training
and ensuring that your policies comply with the NLRA, in preparation
for heightened employee awareness about that law.
