In an early May 2020 decision, the Board declared a temporary pause in charged parties (usually an employer) complying with the NLRB’s standard notice posting remedy in response to the ongoing COVID-19 public health crisis. Thereafter, on May 20, 2020, General Counsel Peter B. Robb issued GC Memo 20-06 and made this temporary change applicable to informal settlement agreements (as a notice posting is typical in such arrangements).
A party that is liable for violations of the Act and/or who enters into a settlement agreement will need to post a notice within 14 days of a decision being issued, or execution and approval of an agreement (the notice is usually served by the involved NLRB Regional office). As known to traditional labor practitioners, notices must be physically posted somewhere at the facility where all employees have access to it and remain posted for 60 consecutive days. Additionally, an employer must distribute a notice electronically (e.g., Intranet, email, etc.) if it customarily communicates with employees in such fashion. However, with the closures of businesses around the country due to the Coronavirus, the remedial effect of notice postings has been hindered because there are minimal-to-no employees working at some of the facilities where notices must be put up. As such, a notice posting has proven not to be an effective way of advising employees of violations of the Act and their rights under federal labor law – the purposes of the notice – since employees are not around to read it.
Understanding this reality, the Board and General Counsel announced and implemented the aforementioned temporary delays in relation to remedial notices. For now, Employers (or union charged parties) do not need to post and/or electronically distribute notices “within 14 days” of service . If a facility is currently closed or is open and operating with less than a substantial complement of employees, then the 60 consecutive day notice period for posting will begin when a facility reopens and a substantial complement of employees have returned to work. A “substantial complement” is at least 50% of the total number of employees working before the COVID-19 related closing occurred. That said, an employer who reopens and is required to electronically distribute notices does not need to wait until a substantial number of employees return to work, and must – if appropriate – email the notices as soon as the workplace reopens.
These changes to remedial notices do not apply to charged parties that have remained opened and staffed with a substantial complement of employees during the Coronavirus pandemic. As noted by the Board, a return to the standard timeline for notices will happen when “conditions warrant” but, until then, these directives are applicable. Stay tuned for what happens next.
Carlos A. Torrejon is a former NLRB Attorney and an associate in the firm’s Labor and Employment Department, resident in its Morristown office.
Summer Associate Kelly McNaughton contributed to this blog post.