There is some confusion in the employer community about the obligation to post a notice concerning union organizing rights. Most employers do not have the obligation, but many companies with federal contracts or subcontracts do.
In 2013, as a result of the National Ass’n of Manufacturers v. NLRB, 717 F.3d 947 (D.C. Cir. 2013) and Chamber of Commerce v. NLRB, 721 F.3d 152 (D.C. Cir. 2013) decisions, the National Labor Relations Board (NLRB) rule requiring all private employers to post a notice to employees of their rights under the National Labor Relations Act (NLRA) was invalidated. The NLRB did not seek Supreme Court review. As a result, most employers were let off the hook for the posting obligation. But federal contractors and subcontractors should be reminded that they likely continue to have obligations under Executive Order 13496, issued in 2010, to post this notice to all employees, and this obligation remains effective.
Executive Order 13496 applies to any construction, supply, or service prime contract of $100,000 or more solicited after June 21, 2010 and any subcontract to that prime contract of $10,000 or more.
The primary obligations of Executive Order 13496 are:
- Physically post the Notice of Employee Rights under the National Labor Relations Act where other employee notices are posted.
- Include a clause in covered subcontracts and purchase orders setting out the text of the required notice (or incorporating the regulation text by reference) and outlining the posting obligation.
- To include the clause by reference, the contract or purchase order must cite to “29 C.F.R. Part 471, Appendix A to Subpart A.”
- Post the notice electronically if the contractor posts employee notices regarding the terms and conditions of employment electronically.
- Electronic posting requires the contractor to post a link to OLMS’s website containing the employee notice where they customarily place other electronic notices to employees about their employment. This link must be no less prominent than other employee notices and must read “Important Notice about Employee Rights to Organize and Bargain Collectively with Their Employees.”
- Electronic posting does not substitute for physical posting. Both types of posting are required if electronic posting is applicable.
Audits of E.O. 13496 compliance may be a part of OFCCP desk audits.
A copy of the poster is available here.