Monthly Archives: September 2011

September 19, 2011

Employee Misclassification

Secretary of Labor Hilda L. Solis announced at a ceremony on September 19, 2011 that DOL's Wage and Hour Division, IRS, and agency leaders from Connecticut, Maryland, Massachusetts, Minnesota, Missouri, Utah, and Washington signed memoranda of understanding to improve efforts to combat the business practice of misclassifying employees in order to avoid providing employment protections, i.e. paying payroll taxes, workers' compensation expenses, and other benefits.

The memoranda of understanding will enable the federal Labor Department to share information and coordinate law enforcement with the IRS and participating states to level the playing field for law-abiding employers and to ensure that employees receive the protections to which they are entitled under federal and state law.  The agreements are intended to send a coordinated message that DOL and the IRS have a new partnership. 


September 5, 2011

NLRB Issues Final Notice Posting Rule


by Jeff Johnson

The National Labor Relations Board (NLRB) has issued a final rule requiring most private employers to notify employees of their rights under the National Labor Relations Act (NLRA) by posting a notice. The rule will take effect November 14, 2011, which is 75 days after August 30, 2011, when the rule is scheduled to be published in the Federal Register.

The 11-by-17 inch notice is similar in content and design to the notice of NLRA rights that must be posted by federal contractors under the Department of Labor's rule. Copies of the notice will be available on the NLRB website ( and from NLRB regional offices by November 1.

The notice must be physically posted at the workplace, just as with other postings of employee rights under other federal labor laws. In addition, the employer must post the notice on its internet or intranet site if personnel rules and policies are customarily posted there. Employers are not required to distribute the posting by email, Twitter, or other electronic means.

The NLRB will make translated versions of the notice available, and must be posted where at least 20% of the employees are not proficient in English and speak another language.

Employers who fail to post the notice commit an unfair labor practice under Section 8(a)(1) of the NLRA, and may face tolling of the NLRA's six-month statute of limitations for filing an unfair labor practice charge. There are no recordkeeping or reporting requirements under the NLRB's rule, and the NLRB does not have the authority to fine an employer for failing to comply with the notice posting requirement.

The posting requirement applies to all private employers (including labor unions) who are subject to the NLRA, which includes all but the very smallest employers who are not engaged in interstate commerce. Agricultural, railroad, and airline employers are not covered by the NLRA, and, in response to comments received after the proposed rule was announced, the U.S. Postal Service is exempted from the rule.

The final rule, which the NLRB adopted by a 3-1 vote (Member Brian E. Hayes (R) dissenting) is substantially similar to the proposed rule published in December 2010. In response to comments, the NLRB dropped proposed requirements for emailing and color printing of the notice, and added language to the notice describing the right of employees under the NLRA to refrain from engaging in statutorily-protected activity.

For more information or questions, contact Jeffrey T. Johnson of Holland & Hart's Labor & Employment Practice Group, 303-295-8019,