New Employee Rights Posting Requirement Applicable to All Banks
June 21, 2010
The Office of Labor-Management Standards (“OLMS”) in the U.S. Department of Labor has issued a final rule (“Rule”) implementing Executive Order 13496.
The Executive Order requires certain federal departments and agencies to include in their government contracts provisions requiring contractors and subcontractors with whom they do business to post notices informing their employees of their federal labor rights.
The Rule broadly defines a “government contract” to include agreements through which a government contracting agency obtains “fund depository” services. In a recent webinar given by the Office of Federal Contract Compliance Programs (“OFCCP”), one of the agencies responsible for implementing the Rule, attorneys from that office stated unequivocally that the provision of deposit insurance through the FDIC satisfies the government contract condition for banks. A bank is also covered on independent grounds if it is a depository of federal funds or is an issuing and paying agent of U.S. savings bonds and notes. The bottom line is that the posting requirement applies to all FDIC-insured financial institutions.
The notice is a reminder to employees of their rights protected under the National Labor Relations Act. That act protects employees’ rights to organize and bargain collectively with their employers, and also protects employees from undue influence from unions and organizers.
Posters with the required employee notice, including foreign language translations, will be available from the contracting agency or may be obtained from the Division of Interpretations and Standards of the OLMS, U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-5609, Washington, DC 20210, or from any field office of the OLMS or OFCCP. A copy of the poster may also be downloaded from http://www.olms.dol.gov. Contractors may also reproduce and use exact duplicate copies of the official poster.
Contractors are required to post the notice conspicuously in and around their premises, in essence where other notices to employees are posted. A contractor that customarily posts notices to employees electronically must, in addition, post electronically. This requirement may be satisfied by displaying a link to the DOL’s web site that contains the full text of the poster. The link must be displayed conspicuously on an internal or external web site maintained by the contractor and customarily used for employee notices. The link must read, “Important Notice about Employee Rights to Organize and Bargain Collectively with Their Employers.”
If a “significant portion” of a contractor’s workforce is not proficient in English, the notice must be in the language that the employees speak, and any electronic link must be to the DOL’s web site that contains the translated version of the notice. The Rule includes specifics about ensuring that the notice is posted where it is accessible by employees covered by the National Labor Relations Act and engaged in activities relating to the performance of the contract. As to banks, the provision of FDIC insurance is not “performed” in any particular part of the organization, though at a minimum the notice should be posted at all branches where deposits are taken.
Enforcement of the notice requirement is shared by the OFCCP, which is responsible for investigation and conciliation, and the OLMS, which is responsible for enforcement. The sanctions, penalties, and remedies include canceling or terminating the government contract and barring a contractor from future federal contracts.
Executive Order 13496 also revoked Executive Order 13201 (issued on February 17, 2001) which required federal contractors to post a notice informing their employees of rights concerning payment of union dues or fees. The DOL has rescinded 29 CFR Part 470, which implemented that requirement.
Contractors also have a duty to ensure compliance by any subcontractor that the contractor engages to perform all or part of a covered federal contract. This means in part including in any subcontract the text of the notice (see no. 4 in the notice below) and appropriate provisions to enforce the requirement and impose sanctions for non-compliance. The posting requirement does not apply to relations with independent contractors.
Here is the text of the mandatory notice:
Employee Rights Under The National Labor Relations Act
The NLRA guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity. Employees covered by the NLRA* are protected from certain types of employer and union misconduct. This Notice gives you general information about your rights, and about the obligations of employers and unions under the NLRA. Contact the National Labor Relations Board, the Federal agency that investigates and resolves complaints under the NLRA, using the contact information supplied below, if you have any questions about specific rights that may apply in your particular workplace.
Under the NLRA, you have the right to:
- Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.
- Form, join or assist a union.
- Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.
- Discuss your terms and conditions of employment or union organizing with your co-workers or a union.
- Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.
- Strike and picket, depending on the purpose or means of the strike or the picketing.
- Choose not to do any of these activities, including joining or remaining a member of a union.
Under the NLRA, it is illegal for your employer to:
- Prohibit you from soliciting for a union during non-work time, such as before or after work or during break times; or from distributing union literature during non-work time, in non-work areas, such as parking lots or break rooms.
- Question you about your union support or activities in a manner that discourages you from engaging in that activity.
- Fire, demote, or transfer you, or reduce your hours or change your shift, or otherwise take adverse action against you, or threaten to take any of these actions, because you join or support a union, or because you engage in concerted activity for mutual aid and protection, or because you choose not to engage in any such activity.
- Threaten to close your workplace if workers choose a union to represent them.
- Promise or grant promotions, pay raises, or other benefits to discourage or encourage union support.
- Prohibit you from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances.
- Spy on or videotape peaceful union activities and gatherings or pretend to do so.
Under the NLRA, it is illegal for a union or for the union that represents you in bargaining with your employer to:
- Threaten you that you will lose your job unless you support the union.
- Refuse to process a grievance because you have criticized union officials or because you are not a member of the union.
- Use or maintain discriminatory standards or procedures in making job referrals from a hiring hall.
- Cause or attempt to cause an employer to discriminate against you because of your union-related activity.
- Take other adverse action against you based on whether you have joined or support the union.
If you and your coworkers select a union to act as your collective bargaining representative, your employer and the union are required to bargain in good faith in a genuine effort to reach a written, binding agreement setting your terms and conditions of employment. The union is required to fairly represent you in bargaining and enforcing the agreement.
Illegal conduct will not be permitted. If you believe your rights or the rights of others have been violated, you should contact the NLRB promptly to protect your rights, generally within six months of the unlawful activity. You may inquire about possible violations without your employer or anyone else being informed of the inquiry. Charges may be filed by any person and need not be filed by the employee directly affected by the violation. The NLRB may order an employer to rehire a worker fired in violation of the law and to pay lost wages and benefits, and may order an employer or union to cease violating the law. Employees should seek assistance from the nearest regional NLRB office, which can be found on the Agency’s Web site: http://www.nlrb.gov.
Click on the NLRB’s page titled “About Us,” which contains a link, “Locating Our Offices.” You can also contact the NLRB by calling toll-free: 1-866-667-NLRB (6572) or (TTY) 1-866-315-NLRB (6572) for hearing impaired.
* The National Labor Relations Act covers most private-sector employers. Excluded from coverage under the NLRA are public-sector employees, agricultural and domestic workers, independent contractors, workers employed by a parent or spouse, employees of air and rail carriers covered by the Railway Labor Act, and supervisors (although supervisors that have been discriminated against for refusing to violate the NLRA may be covered).
This is an official Government Notice and must not be defaced by anyone.
- The contractor will comply with all provisions of the Secretary’s notice, and related rules, regulations, and orders of the Secretary of Labor.
In the event that the contractor does not comply with any of the requirements set forth in paragraphs (1) or (2) above, this contract may be cancelled, terminated, or suspended in whole or in part, and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in or adopted pursuant to Executive Order 13496 of January 30, 2009. Such other sanctions or remedies may be imposed as are provided in Executive Order 13496 of January 30, 2009, or by rule, regulation, or order of the Secretary of Labor, or as are otherwise provided by law.
- The contractor will include the provisions of paragraphs (1) through (4) herein in every subcontract or purchase order entered into in connection with this contract (unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 3 of Executive Order 13496 of January 30, 2009), so that such provisions will be binding upon each subcontractor. The contractor will take such action with respect to any such subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions, including the imposition of sanctions for non-the contractor becomes involved in litigation with a subcontractor, or is threatened with such involvement, as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of the United States.”
Here is a link to the Federal Register publication of the Rule:
http://edocket.access.gpo.gov/2010/2010-11639.htm. A question and answers fact sheet regarding the Rule has been produced and is available from the OLMS website at: http://www.dol.gov/olms/regs/compliance/FactSheet_LaborRightsPoster.pdf.
The requirement becomes effective as of June 21, 2010.
The information contained in this CBA Regulatory Compliance Bulletin is not intended to constitute, and should not be received as, legal advice. Please consult with your counsel for more detailed information applicable to your institution.
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