Compliance Bulletin

New Employee Rights Posting Requirement; Banks Covered Under Prior Rule
August 30, 2011

Last June the U.S. Department of Labor issued a 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. 

Banks are covered by the rule because they, by offering FDIC insurance, are treated for purposes of the rule as government contractors. See CBA’s Regulatory Compliance Bulletin, New Employee Rights Posting Requirement Applicable to All Banks, dated June 21, 2010.

Last week the National Labor Relations Board (“Board”) also issued a final rule (“NLRB Rule”) requiring most private-sector employers to notify employees of their rights under the National Labor Relations Act. The nature and purpose of this notice are essentially the same as for the DOL notice—to notify covered employees of their rights under the National Labor Relations Act. They include the right to organize, bargain collectively, engage in other concerted activities, and also the right to refrain from such activities.

Government contractors such as banks that are already complying with the DOL posting requirement have a safe harbor under the NLRB Rule. That is, banks comply with the NLRB Rule if they comply with the DOL posting requirement [1]. Note however that the criteria for coverage under the NLRB Rule are broad and may include non-bank affiliates and subsidiaries of banks that have not needed to comply with the DOL rule because they are not government contractors.

The NLRB Rule does not apply if an employer’s impact on interstate commerce is so slight that it does not meet the Board’s discretionary jurisdiction standards. Otherwise, with a few exceptions not applicable here [2], the NLRB Rule applies to most other employers. Those jurisdiction standards are, in relevant part, based on either the amount of goods sold or services provided by the employer out of state (“outflow”) or purchased from out of state (“inflow). The Board will take jurisdiction over any employer with an annual inflow or outflow of at least $50,000 [3].

The notice must be posted in conspicuous places where they are readily seen by employees, including all places where notices to employees concerning personnel rules or policies are customarily posted. In addition the notice must be posted on an internet or intranet site if the company customarily uses these means to post policies. Posting size and formatting requirements apply. If at least 20% of the employees are not proficient in English and speak another language, the notice must be posted (physically and electronically, if applicable) in English and in the other language (translated posters will be provided by the Board). The Board notes that if an employer requests of the Board a notice in a language for which the notice is not available, then the “requesting employer” will not be liable for non-compliance until the notice becomes available in that language.

The notice will be available for downloading from the Board’s Web site by November. Commercially printed posters may also be used. The text of the notice and additional reference material are available from the NLRB Rule, which was published in the Federal Register on August 30. See also the Board’s Questions and Answers, which addresses additional issues. The NLRB Rule is effective as of November 14, 2011.

  1. See 29 CFR Part 104.203 of the NLRB Rule. The DOL’s rule is set forth in 29 CFR part 471.
  2. See 29 CFR part 104.204.
  3. The Board directs further inquiries about its jurisdictional standards to Chapter 1 of its manual “An Outline of Law and Procedure in Representation Cases,” which can be found on the Board’s website.

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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