NLRB Alters Timing for Electronic Posting in COVID-19-Related Cases

As part of a decision issued on June 2nd, 2022, the National Labor Relations Board (NLRB) altered the timing of its electronic posting requirements in circumstances where an employer is affected by COVID-19. Specifically, the decision affects employers that have either not yet reopened due to COVID-19 or where a substantial complement of employees has not yet returned to work on site. Before the decision, the NLRB had temporarily suspended its standard electronic posting requirement. In April 2022, New York State passed similar legislature, requiring employers to provide electronic labor law postings.

Previous NLRB Electronic Posting Requirement

In Danbury Ambulance Service, 369 NLRB No. 68 (2020), the NLRB temporarily halted its standard electronic posting requirement. In brief, the standard requirement stated that an employer must post notices to employees within 14 days after the employer was served with a decision of unfair labor practice. The notice would notify employees about the violation and communicate their rights under the National Labor Relations Act (NLRA). However, in light of the COVID-19 pandemic, the NLRB established a revised electronic posting requirement. In the Danbury decision, facilities that were closed temporarily because of COVID-19 would need to post physical and electronic notices:

• within 14 days after the facility reopened, and
• a substantial complement of employees returned to work.

In effect, any COVID-19 pandemic-related delay in physical notice posting would also apply to electronic posting for affected businesses.

Current Decision Regarding NLRB Electronic Posting

In Paragon Systems, Inc., 371 NLRB No. 104, an NLRB majority modified the electronic posting requirement portion of the previous decision. Meanwhile, the NLRB retained the physical notice posting standards the Danbury decision established. In the Paragon Systems decision, the NLRB held that affected employers must again post required electronic notices “within 14 days after service by the Region” of a decision of an unfair labor practice.

The Decision Supports the NLRA’s Purpose

Overall, the majority decided that moving the timing forward for electronic posting ensures that employers will promptly notify employees of unfair labor practices that affect them. Additionally, it clarifies for the employee what steps will remedy those violations. Thus, the modified timing better serves the purposes of the NLRA during an ongoing period of COVID-19-related remote employment. As Chairman Lauren McFerran stated, “As our country continues to recover from the pandemic, it is important that the Board’s remedies remain relevant to the realities of the workforce.”

Employer Takeaways and Resources

In general, employers with remote workers must also comply with other electronic posting requirements. To this end, the U.S. Department of Labor released Field Assistance Bulletin No. 2020-7, clarifying how to comply with federal notice and posting requirements in a remote environment. Finally, as many workers retain work-from-home privileges, employers may find it challenging to ensure employees maintain an acceptable level of productivity and performance. Such employers may benefit from these ten tips for managing remote employees.