As we discussed here, the National Labor Relations Board decided early this month that it would temporarily suspend the remedial notice-posting and emailing requirement at facilities shut down due to the COVID-19 pandemic until after reopening and a return of a “substantial complement” of employees.  See Danbury Ambulance Service, Inc., 369 NLRB 68 (2020).

The Danbury Ambulance ruling addressed the posting obligation following the issuance of a Board decision in a contested unfair labor practice case. Normally, employers are required to post the Notice to Employees at the workplace within 14 days after issuance of a decision.  The notice informs employees of the employer’s violation, assures them that the employer will not engage in such unfair labor practices in the future, and advises employees of their statutory rights to form, join or assist labor organizations and to engage in other activity for their mutual aid and protection.  Danbury Ambulance did not address an employer’s notice-posting obligation pursuant to an informal settlement agreement approved by a Regional Director.

On May 20, NLRB General Counsel Robb issued a memorandum announcing that the same suspension of the notice posting obligation will apply to settled cases. Thus, if a place of business is either: (1) closed and a substantial number of employees are not reporting to the facility due to the COVID-19 pandemic, or (2) open and operating with less than a “substantial complement” of employees, then the 60-day notice-posting requirement will be suspended as described in the Danbury Ambulance decision.

The obligation to post a notice is postponed until 14 days after the facility involved reopens and a “substantial complement of employees have returned to work.”  In cases where the settlement agreement requires, in addition to the traditional physical posting of the Notice to Employees on bulletin boards at the workplace, that the employer email the notice to the affected employees — because the employer customarily communicates with its employees by email — the General Counsel has directed that the notice be emailed as soon as the business reopens and should not be delayed until a substantial complement of employees have returned. “By doing this, the notice will be placed in employees’ email in-boxes awaiting their return.” These changes are temporary, but take effect immediately.

While the Danbury Ambulance decision did not define what constitutes a “substantial complement of employees,” the GC Memorandum filled that gap, defining “substantial complement” as at least 50% of the total number of employees who were employed at the facility, where the notice is to be posted, prior to the COVID-19 related closure.

As the NLRB navigates the “new normal” during the COVID-19 pandemic, our team will continue to monitor the important developments and update you as they occur.

Photo of Peter D. Conrad Peter D. Conrad

Peter D. Conrad began his legal career as a trial attorney and hearing officer at the National Labor Relations Board.

Peter joined Proskauer’s Labor & Employment Law Department in 1980 and became a partner in 1986. He has represented employers in numerous industries…

Peter D. Conrad began his legal career as a trial attorney and hearing officer at the National Labor Relations Board.

Peter joined Proskauer’s Labor & Employment Law Department in 1980 and became a partner in 1986. He has represented employers in numerous industries (including health care, higher education, financial services, trucking, pharmaceutical, petrochemical, telecommunications, legal services, publishing, retail, broadcasting, entertainment, hotel and professional sports) in the full range of unfair labor practice and election proceedings before the NLRB. In the nearly 30 years that Peter has handled matters at the NLRB, he has confronted virtually every issue that a labor lawyer practicing in this area could expect to see, from the straightforward discharge for union activity, to the most complex secondary boycott, successorship and refusal-to-bargain situations, representing some of the firm’s most prestigious clients.

The remainder of Peter’s time is devoted to the related areas of union avoidance and corporate campaigns (defending employers against organizational activity in its many forms), as well as arbitration, negotiation, and litigation under collective bargaining agreements. Although primarily engaged in a more traditional labor relations practice, Peter also represents companies in employment discrimination cases (before state and federal administrative agencies and in the courts), workers’ compensation and unemployment insurance proceedings, and general client counseling in all areas of labor relations and employment law.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is an associate in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major…

Joshua S. Fox is an associate in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh assisted with the successful representation of the Toronto Blue Jays in their case against All-Star Josh Donaldson, which was the largest club victory in salary arbitration in recent years. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations, as well as similar claims brought on behalf of scouts. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Photo of Alex Downie Alex Downie

Alex Downie is a law clerk in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group. He previously worked as a summer associate at Proskauer and as an intern at the Department of Justice.

Alex earned…

Alex Downie is a law clerk in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group. He previously worked as a summer associate at Proskauer and as an intern at the Department of Justice.

Alex earned his J.D. from the University of Virginia School of Law, where he served as the executive editor of the Virginia Law & Business Review. He also volunteered for the school’s employment law clinic, where he assisted with a variety of employment-related matters ranging from employment discrimination to wage and hour disputes.