• OFCCP Seeks Extension for NLRB Poster Directive
  • May 22, 2013 | Author: Matt Allen Decker Nusbaum
  • Law Firm: Proskauer Rose LLP - Washington Office
  • The Department of Labor (DOL) has submitted an information collection request to the Office of Management and Budget (OMB) to extend its authority to enforce Executive Order 13496, which requires federal contractors to post the “Notice of Employee Rights Under Federal Labor Laws” poster, commonly referred to as simply the “Employee Rights” poster.

    President Barack Obama signed Executive Order 13496 on January 30, 2009. The Executive Order requires certain government contractors and subcontractors to post notices informing employees of their rights under federal labor laws. The final rule implementing DOL procedures for enforcement were published in the Federal Register May 20, 2010. On the same day, OMB issued control number 1245-0004, which authorizes DOL to collect information necessary to enforce the Executive Order. Under the Paperwork Reduction Act, DOL’s right to collect information concerning the Executive Order is scheduled to expire on May 31, 2013. The information request seeks to extend DOL’s right to continue to collect information concerning the Executive Order.

    However, the future of the Executive Order is uncertain. As previously reported here, following promulgation of the Final Rules implementing Executive Order 13496, the rule was immediately challenged in federal district courts in South Carolina and the District of Columbia. Both courts invalidated the rule. The DC Circuit Court of Appeals affirmed in part and vacated the rule. The South Carolina case is currently on appeal before the Fourth Circuit.

    The District of South Carolina, Charleston Division, found that the National Labor Relations Board (NLRB) lacked the authority to promulgate the notice-posting rule. The DC Circuit Court of Appeals focused instead on the means of enforcement, finding that the Executive Order and implementing Final Rules violated the free speech provision of the National Labor Relations Act. Further, the court ruled that the NLRB does not have the authority to toll the six-month statute of limitations by regulation. The NLRB has agreed to voluntarily stay enforcement of the Executive Order pending of the resolution of these issues in the federal courts.