Originally, employers were required to post this notice by November 30, 2011; however, the NLRB twice delayed the posting date – most recently because of a legal challenge by the National Association of Manufacturers.  That challenge has now been resolved, and the United States District Court for the District of Columbia determined earlier this month that the NLRB has the legal authority to require employers to post its employee-rights notice.  Accordingly, as of April 30, 2012, most private-sector employers must post this notice.  Employers who have significant numbers of non-English speaking employees may be required to provide a translated notice. 

 A copy of the required poster (in both English and certain languages other than English) may be obtained from an NLRB office or from the NLRB’s website, http://www.nlrb.gov/poster.

Once it has been formally published in the Federal Register, the proposed rule will be subject to public comment for a period of sixty days. 

Considering the question of "whether discriminating against someone on the basis of his or her gender non-conformity constitutes sex-based discrimination under the Equal Protection Clause" of the Fourteenth Amendment, the Eleventh Circuit Court of Appeals answered in the affirmative.  In so ruling, the Eleventh Circuit joined several other Courts of Appeals and a number of district courts (including one in Pennsylvania).

The court also concluded that Glenn had presented sufficient direct evidence to demonstrate that her gender non-conformity was the reason for her termination.  In a Title VII case, that alone would have been sufficient for Glenn to prevail.  Because Glenn was proceeding against a state employer under the Equal Protection Clause, however, the court also considered whether OLC had an "exceedingly persuasive justification" for the termination and found none. 

This case is an important reminder to employers - even in states and municipalities which do not specifically protect transgender individuals - that transgender discrimination may result in liability under federal law.

The notice-posting rule was scheduled to take effect next month, but the NLRB has now postponed the implementation date by more than two months.  The new effective date of the rule is January 31, 2012.

Moreover, as one recent “Facebook firing” case demonstrates, once an unfair labor practice charge is brought and the NLRB gets involved, other seemingly innocuous policies also may come under fire.  For instance, an administrative law judge found last week that the following three policies unlawfully restricted employees’ rights under Section 7 of the National Labor Relations Act:

• Courtesy:  Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the [company].
• Unauthorized Interviews: As a means of protecting yourself and the [company], no unauthorized interviews are permitted to be conducted by individuals representing themselves as attorneys, peace officers, investigators, reporters, or someone who wants to “ask a few questions.” If you are asked questions about the [company] or its current or former employees, you are to refer that individual(s) to your supervisor. A decision will then be made as to whether that individual may conduct any interview and they will be introduced to you by your supervisor with a reason for the questioning. Similarly, if you are aware that an unauthorized interview is occurring at the [company], immediately notify the General Manager or the President.
• Outside Inquiries Concerning Employees: All inquiries concerning employees from outside sources should be directed to the Human Resource Department. No information should be given regarding any employee by any other employee or manager to an outside source.

If your social media or other policies restrict employees’ rights under the NLRA (or could reasonably be read to restrict employees’ rights) – even in a non-union workplace – you should take steps to update them.

Misclassifying employees as independent contractors can be a costly mistake.  Employers who are uncertain about the proper classification of a worker should consult an attorney.  Employers who believe they have misclassified existing workers also may want to consider whether they are eligible for the recently-announced IRS Voluntary Classification Settlement Program.

According to the NLRB’s August 25, 2011 press release, the Rule is scheduled to take effect November 14, 2011.  Employers who have significant numbers of non-English speaking employees may be required to provide a translated notice.  A copy of the required poster (in both English and certain languages other than English) may be obtained from an NLRB office or from the NLRB’s website, http://www.nlrb.gov/.

A public hearing on the proposed rule changes is scheduled for July 18, and the NLRB is accepting written comments until August 22, 2011.