Employers may recall back in 2013 when two federal courts invalidated the National Labor Relations Board (NLRB) Final Rule that would have required most private sector employers to post a notice of employee rights under the National Labor Relations Act (NLRA) in the workplace. The courts found that the posting requirement violated employers’ free speech rights and that the NLRB lacked the authority to institute the posting rule. The right to free speech includes the right not to speak and the Final Rule would force employers to disseminate a message they might not support. However, employers remained free to voluntarily post the notice.
The NLRB cases did not affect a US Labor Department of Labor (DOL) Final Rule issued pursuant to Executive Order 13496 that requires federal contractors to post a similar workplace notice informing workers of their rights under the NLRA as a condition of receipt of a federal contract. That obligation was separately challenged in a federal district court case, Nat’l Ass’n of Mfrs. v. Perez, No. 1:13-cv-01998 (D.D.C. May 7, 2015), decided last month.
In that case, the court held that the DOL’s posting rule did not impinge on federal contractors’ free speech rights. The court reasoned that federal contractors can choose not to contract rather than display the poster. If they do contract, they may express views contrary to those expressed in the poster without losing their federal contract. The court also rejected arguments that the President exceeded his authority to make Executive Order 13496 and that the Rule was preempted by the NLRA.
At this point it is not clear whether the district court’s decision will be appealed. In the meantime, federal contractors with prime contracts in excess of $100,000 or subcontracts in excess of $10,000 must continue to display the poster “so that it is prominent and readily seen by employees.”
Compliance Poster Company has several federal contractor compliance options: