11/7 ELECTION UPDATE – Potential Loophole for President Obama on NLRB Posting?
With Republicans holding on to control of the House but failing to make inroads into the Senate, Congress is divided.
One way for the re-elected Obama administration to bypass Congress is with an Executive Order. In fact, two of the federal postings in the table below arose from Executive Order – including the Notification of Employee Rights Under Federal Labor Laws, which resulted from Executive Order 13496, signed by President Obama in January 2009.
The question remains: if the President used an Executive Order to require the NLRB posting for employers, would it survive the courts when there is mounting case law opposing the NLRB’s authority to issue postings?
ORIGINAL POST
When it comes to federal labor laws in the U.S. that result in postings, the majorities in the U.S. Congress have a stronger effect than the party affiliation of the sitting U.S. President.
With the exception of the Davis-Bacon Act of 1931 for federal construction projects, Democrats controlled both houses of the U.S. Congress at the enactment of the following labor laws that resulted in postings. (It’s a fifty-fifty split when it comes to the party association of the sitting President for these postings.)
R = Republican
D = Democrat
| Posting |
Year Enacted |
House Majority |
Senate Majority |
President |
| Notice to All Employees Working on Federal or Federally Financed Construction Projects (Davis-Bacon Act) |
1931 |
R |
R |
R (Hoover) |
| Minimum wage poster |
1938 |
D |
D |
D (Roosevelt) |
| Equal Opportunity is the Law |
1965 |
D |
D |
D (Johnson) |
| Notice to Employees Working on Government Contracts (McNamara-O’Hara Service Contracts Act) |
1965 |
D |
D |
D (Johnson) |
| Job Safety and Health Protection |
1970 |
D |
D |
R (Nixon) |
| Notice: Migrant and Seasonal Agricultural Worker Protection Act |
1983 |
D |
D |
R (Reagan) |
| Notice: Employee Polygraph Protection Act |
1988 |
D |
D |
R (Reagan) |
| Your Rights under the Family and Medical Leave Act |
1993 |
D |
D |
R (Bush) |
| Uniformed Services Employment and Reemployment Rights Act |
1994 |
D |
D |
D (Clinton) |
| Notification of Employee Rights Under Federal Labor Laws |
2009 |
D |
D |
D (Obama) |
Regardless of 2012 election outcomes, most employers in the U.S. should remain attentive to two postings. First, the FMLA posting is undergoing revision to include additions to military leave provisions. That process is fairly far down the road, and it’s unlikely that the elections would stop its momentum.
The second posting, however, is the NLRB’s Employee Rights notice. The NLRB posting is on life support depending on court action and, potentially, the outcome of the 2012 election. The NLRB continues to try to carve out credibility through its decisions on workers’ right to engage in protected concerted activity, evidenced through several high-profile rulings on social media cases. U.S. businesses and the Republican party are not fans of what they see as a quasi-government agency that promotes unionization.
For example, Senate Republicans joined a lawsuit in September to nullify President Obama’s recess appointments. If Republicans win control of Congress, they may try to dismantle or at least curtail the NLRB’s power, and the NLRB posting could go the way of New Coke.
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