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Law360 (May 21, 2020, 5:01 PM EDT) -- The National Labor Relations Board's general counsel said Wednesday that businesses closed during the pandemic that settle cases alleging labor law violations don't have to post remedial notices until after they reopen, extending to settlements a temporary rule that the labor board recently adopted for parties in decisions it issues.
NLRB general counsel Peter Robb issued a memorandum to officials in the agency's regional offices saying that businesses accused of violating the National Labor Relations Act won't be required to post notices to workers that are mandated by informal settlements they sign to resolve the charges against them until they reopen from coronavirus-related closures.
Robb said the memo stretches to informal settlements the "same temporary notice posting change" that the NLRB adopted a few weeks ago in a case called Danbury Ambulance Service Inc.
In Danbury, the NLRB said that the 14-day period within which employers have to post notices that disclose adverse rulings and remind workers of their rights doesn't start for businesses that are closed during the pandemic until after they reopen "and a substantial complement of employees have returned to work."
The delay also applies to employers that usually communicate with workers "by electronic means," according to the board's ruling, which also made clear that the temporary changes don't apply to businesses that are "open and staffed by a substantial complement of employees."
In Wednesday's memo, Robb made similar adjustments "effective immediately" for cases that don't make it to the labor board for adjudication but rather end in informal settlements.
"Accordingly, if a place of business/office is currently closed and a substantial number of employees are not reporting to the facility due to the coronavirus pandemic or is open and operating with less than a substantial complement of employees, the 60 consecutive day period for posting will begin when the place of business/office reopens and a substantial complement of employees have returned to work," Robb said.
Robb defined a "substantial number of employees" to mean that at least half of the number of workers a charged party had before a pandemic-related closure must be back at the worksite.
"Since a charged party is able to email the notices to employees as soon as it reopens, in cases involving informal settlement agreements, the emailing of the notice, if appropriate, must be done as soon as the facility/office reopen and not wait for a substantial complement of employees to return to work," Robb added. "By doing this, the notice will be placed in employees' email in-boxes awaiting their return to work."
--Editing by Abbie Sarfo.
For a reprint of this article, please contact reprints@law360.com.
