NLRB Poster Postponement Problem

The National Labor Relations Board (NLRB) stirred up a controversy in 2011 by adopting a regulation requiring most US employers to put up a poster about employees' federal labor rights under the National Labor Relations Act (NLRA).

According to the official publication of the NLRB's "final rule" in the Federal Register, the NLRA poster requirement was to take effect on November 14, 2011.

Due to the adverse reaction, however, the federal agency decided to "postpone" the deadline for putting up the NLRA poster. According to the October 5, 2011, NLRB announcement, "The new effective date of the rule is Jan. 31, 2012."

It's curious that, following the official enactment and publication of the final rule, which occurred only after a period of time to allow for public comments to be submitted and considered, that the agency thinks it can change the effective date of its regulation by merely issuing a press release.

To a lawyer, once a regulation is adopted through the official administrative procedures, it basically has the force of law and isn't subject to ad hoc tweaking by the agency. In other words, if the regulation said November 2011 was the date it took effect, that's when it took effect. Not some later date.

Plus, the new regulation itself says there isn't any reason to delay. According to Footnote 213, "The Board finds unpersuasive the suggestions in several comments that the effective date of the rule be postponed to as late as April 15, 2012. The Board finds nothing in the requirements of the rule or in the comments received that would warrant postponing the effective date."

Accordingly, the NLRB poster rule probably did legally go into effect in November 2011 — as specified by the official regulation — even if the NLRB issued a press release (after adopting the rule) saying: "Not until January 2012 it doesn't."