We reported earlier about the NLRB notice-posting rule, which was to take effect on November 14, 2011. The rule applies to all companies subject to NLRB jurisdiction. (See discussion below of NLRB jurisdiction.) The rule requires companies to post in the workplace notices to employees about their rights to join a union. Not surprisingly, the proposed rule has generated a great deal of attention and some controversy. Recently, we reported on the first lawsuit, filed by the National Association of Manufacturers, to challenge the NLRB’s right to impose this rule. Since then, a number of other lawsuits have been filed, including lawsuits filed by the U.S. Chamber of Commerce, the National Right to Work Foundation and the National Federation of Independent Business.

Possibly in response to those lawsuits, the NLRB earlier today issued a notice on its web site saying that the posting requirement is now postponed to January 31, 2012. The Board’s stated reason is to allow time for "enhanced education and outreach to employers, particularly those who operate small and medium-sized businesses." Indeed, we have received a number of questions regarding the scope of the posting requirement. For instance, many are asking whether the Board’s posting requirement will apply to a particular company or industry. To put it briefly, just about every company in the private sector outside of a few very specific industries is covered by NLRB jurisdiction. For example, certain employers in the railroad, airline, and agricultural industries and federal, state, and local municipal government entities are not covered by the NLRA. Some religious institutions are not covered. But most employers in all other industries are covered.

Another question we are being asked is: "Are there any exemptions for small businesses?" There is no specific exemption from NLRB jurisdiction for a small business. However, to be covered by NLRB jurisdiction, a company has to have enough volume of business to have some impact on interstate commerce. But, the standards for determining that are very broad. For example, in most industries, a company is considered to have an effect on interstate commerce as long as it either sells goods or provides services to out of state customers valued at least $50,000 in a year or purchases goods or services from out of the state valued at at least $50,000 in a year. For some industries, jurisdiction is based on gross annual volume of business The requisite volumes are contained in the Frequently Asked Questions in the Board’s postponement announcement under the question: "What if I operate a small business?"

Finally, keep in mind that the Board’s posting requirement will apply to all covered businesses regardless of whether they are currently unionized. Therefore, unless it is successfully challenged, the NLRB’s posting requirement will apply to all but a very few private sector employers. If the NLRB’s posting requirement is upheld, non-unionized employers can expect that their managers and supervisors will begin receiving a questions from their employees about their rights. As a result, non-unionized employers should strongly consider management and supervisory training on how to respond to those questions.