- NLRB Requires "Electronic Posting" for Remedial Notices
- November 11, 2010 | Authors: Seth T. Ford; Richard Gerakitis; Evan H. Pontz
- Law Firms: Troutman Sanders LLP - Atlanta Office ; Troutman Sanders LLP - Richmond Office ; Troutman Sanders LLP - Atlanta Office
For nearly 70 years, the National Labor Relations Board has required employers to post remedial notices concerning labor violations in “conspicuous places” for their employees. Long before the existence of the Internet and telecommuting, these places included company bulletin boards, time clocks, department entrances and other places where notices to employees were customarily posted. However, on October 22, 2010, the Board held that employers are required to do more in today’s age of electronic communications.
In a 3-to-1 decision, the Board held that employers (and unions too) that commit labor law violations must distribute remedial notices electronically, in addition to the traditional posting of paper notices on bulletin boards, when such electronic distribution is a “customary means of communicating” with employees or those represented by the unions. Thus, depending on its preferred method of electronic communication, employers may now be required to “post” remedial notices by sending an e-mail to employees and/or posting a notice on internal and external websites. Although the decision does not expressly address posting via social media sites, it appears that posting on such sites may also be required where an employer regularly uses social media to communicate with its employees. Whether a particular type of electronic notice is appropriate and whether an employer customarily disseminates information to its employees electronically are fact questions which will have to be resolved at the compliance stage following a Board finding that an unfair labor practice has been committed and that notices must be distributed as a remedy.
Board Member Brian Hayes dissented from the majority opinion arguing that the Board transformed “what has been an extraordinary remedy into a routine remedy.” He also noted that disseminating notices electronically increases the risk that such notices could be “anonymously altered and broadly distributed to nonemployees, customers, stockholders or competitors.” For instance, once an employee receives a remedial notice through an e-mail, he or she could easily copy the content of that notice to a social media website or forward the e-mail to non-employees. The majority dismissed such concerns on the grounds that any electronic posting requirements would be limited to methods customarily used by employers and therefore could not be considered “extraordinary.”
This Board decision about electronic posting of notices, coupled with a decision issued on the same day which requires interest on backpay awards to be compounded on a daily basis, is a further signal of a new direction by the Board towards more union-friendly decisions. The electronic notice decision may even indicate that the Board is inching closer to overturning prior decisions holding that, as part of a policy prohibiting non-business use of its e-mail systems, an employer may prohibit use of employer e-mail to distribute union-related solicitations and distributions.