Executive Summary: Although the D.C. Circuit Court of Appeals' decision invalidating the Nation Labor Relations Board's (NLRB's) notice posting requirement means that private employers currently are relieved of this obligation, the ruling did not create a reprieve for federal contractors.
Executive Order 13496 requires non-exempt federal contractors and subcontractors to post a notice informing their employees of their rights under the National Labor Relations Act (NLRA). In 2010, the Department of Labor issued a final regulation implementing this order. See FordHarrison's Legal Alert, Federal Contractors to Post New Union Notice June 21, 2010, for more information on this requirement. Although similar, this notice posting requirement is separate from the Board's. The D.C. Circuit's opinion in National Association of Manufacturers v. NLRB held that Board's Notice Posting rule violates employers' free speech rights as protected by the First Amendment and § 8(c) of the NLRA because it makes an employer's failure to post the Board's Notice an unfair labor practice and because it treats such a failure as evidence of anti-union animus.
The court's decision did not address the authority of the President to require federal contractors and subcontractors to post a notice of employee rights as a condition of contracting with the federal government. There is an argument that the court's First Amendment analysis applies equally to the EO; however, at this point, no court has invalidated the posting requirement for federal contractors and subcontractors.
The Bottom Line: Federal contractors and subcontractors covered by EO 13496 should not on the sole basis of the D.C. Circuit Court of Appeals' decision discontinue posting the notice of employee rights required by the EO.
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