In a decision issued on June 2, the National Labor Relations Board modified the timing of its electronic notice-posting requirement in circumstances where an employer has not yet reopened its facility due to COVID-19, or where a substantial complement of employees has not yet returned to work on-site when the employer “may be communicating with its employees by ‘electronic means’” (e.g., internet, intranet, email, etc.).

Prior to this decision, the Board temporarily suspended its standard remedial requirement that an employer must post a notice to employees at the involved facility within 14 days after the employer is served with the decision of an unfair labor practice, notifying employees of the employer’s violation and advising employees of their rights under the Act.  For employers that were closed or where employees were not yet reporting to work, employers were not required to post physical notices or distribute electronic notices until 14 days after the involved facility reopened and “a substantial complement of employees ha[d] returned.”

Reasoning that “prompt posting of the notice by electronic means will best effectuate the purposes of the Act by providing employees with timely notice of the unfair labor practices and the steps the Respondent will take to remedy them” the Board has reverted to its previous standard requirement with respect to electronic notification.  Now, the employer should again electronically notify its employees “within 14 days after service [of the unfair labor practice decision] by the Region.”  In addition to electronic posting, the employer should also post physical notices within 14 days after the reopening and staffing of a “substantial complement of employees.”

As we discussed here, the Board has not further defined what constitutes “a substantial complement of employees” in this context.  That said, the substantial complement concept is frequently used by the NLRB as one of the factors determining whether a company is a “successor” employer under the Act.  Based on this standard, the Board likely will consider whether a majority of the job classifications are filled and the operation is engaged in substantially normal production.

Characterizing its decision as one that “simply removes an unnecessary delay” in communication with employees, the majority gave little deference to certain Board Members’ concerns that the combined notice-posting period will likely now extend beyond the current-standard 60 days for certain employers.  Notably, the Majority specifically stated its decision “makes notice posting for more than 60 days a standard remedy for a subset of employers, at least until the Board returns to its pre-pandemic notice-posting remedy.”

As always, we will keep you up to date on the latest developments in the post-COVID return to work landscape.

 

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel 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…

Joshua S. Fox is a senior counsel 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 Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. 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. 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.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.