By Terri Dougherty, J.J. Keller & Associates, Inc.
Displaying the employment law posters required by state and federal law seems like a simple process. What could be easier than posting a few notices relating to wages, leave rights, and antidiscrimination laws? A look at the details, however, shows that it’s not quite that simple.
Posting regulations begin to get complicated when requirements based on a company’s size enter the picture. Specialty posters for certain industries add additional complexity, as do state posting regulations relating to unemployment insurance, workers’ compensation, sick leave, and perhaps a few unusual notices (such as safe computer operation or exposure to bodily fluids). Making sure postings are current isn’t easy either; there were more than 50 required city, state, and federal law posting changes in 2014, and many more changes are expected in the coming years. Before long, an employer might wonder if it’s worth the effort to ensure that its posters are up-to-date.
Federal agency interest
Be assured that posting compliance is not something to neglect. While it may not be an issue that’s on top of a human resource professional’s mind every day, it should not be assumed that posters are low on the list of importance for federal agencies. In fact, during 2014, the Equal Employment Opportunity Commission (EEOC) increased the maximum penalty for not posting a notice of antidiscrimination rights to $210 for each separate offense.
A number of other federal and state posting regulations also carry a fine for not displaying the poster in a conspicuous place:
• The penalty for violating the Occupational Safety and Health Administration (OSHA) posting requirement could reach $7,000;
• An employer violating any provision of the Employee Polygraph Protection Act of 1988, including the posting requirement, faces a
fine of up to $10,000; and
• Employers covered by the Family and Medical Leave Act (FMLA) who willfully refuse to display the notice could be fined $100.
Actions by federal agencies, such as the increase in the EEOC’s poster fine, show that they continue to consider posters to be a significant means of keeping employees apprised of their rights under the law.
The persistent power of posters was underscored in October 2014 when the federal government published a final rule establishing a minimum wage for federal contractors. The final rule includes the requirement that, as of January 1, 2015, covered contractors physically or electronically display a notice informing employees of their rights under Executive Order 13658, which sets a minimum wage for contractors. The posting requirement was included in the final rule based on comments that a proposed rule did
not include a way to keep covered workers informed of their rights. The Department of Labor added the posting requirement to the final rule as an effective way to raise awareness.
In addition, in several cases, the posting of notices has figured into lawsuits filed by federal agencies:
• The Department of Labor (DOL) required a trucking firm to pay $262,500 in back pay and damages to workers who were fired after participating in an inspection audit. The DOL found that the company violated the employees’ whistleblower rights, and as part of the settlement required the company to post OSHA and whistleblower posters in the workplace.
• Investigators from the DOL’s Wage and Hour Division found that a New York supermarket chain whose baggers worked only for tips violated minimum wage regulations. The firm paid more than $372,000 in back wages and damages, and also agreed to post Fair Labor Standards Act (FLSA) notices in English and Spanish at conspicuous locations in its stores.
• The Equal Employment Opportunity Commission (EEOC) fined a grocery store chain for asking about medical information before a job offer was made, in violation of the Americans with Disabilities Act (ADA). In addition to fining the company $25,000, it also ordered the company to display posters concerning federal antidiscrimination laws in all of its stores.
• A court required a beverage distributor to pay $200,000 to an employee who was denied a new position because of his eyesight. The EEOC contended that the employee could safety perform the job, and a jury awarded the employee his entire back pay plus interest. In addition, the court ordered the company to engage an outside consultant to assist with training and provide assistance in the revisions to the company’s policies and notice posting practices.
While the companies in these cases were not fined directly for posting violations, the requirement to display posters was included in the remedies required by the federal agencies. This shows that federal agencies do not take posting requirements lightly. They view them as an important part of an employer’s obligation to be in compliance with required antidiscrimination laws and other laws that protect employee rights.
In addition to achieving compliance with laws that specifically require that certain notices be displayed in the workplace, posting notices is also an effective way to show that an employer is complying with the broader scope of a law. A poster is a visible demonstration of an employer’s efforts.
For example, the Minnesota Department of Human Rights notes that “good faith efforts” by state contractors are specific actions taken to improve equal employment opportunities. These actions include posting all government-mandated posters, including those required by federal, state, and local agencies. These posters must be displayed in areas that are available to employees and applicants at all job sites.
While not every employer is a state or federal contractor, the posting of notices is a positive step all employers can take to document the fact that good-faith efforts are being made to be in compliance with government regulations. The purchase of posters can be documented to show that an employer is staying up-to-date with posting requirements. The fact that the posters are hanging on the wall in conspicuous locations for all employees to see.
While government agencies view posters as an effective way of raising employee awareness of their workplace rights, agencies do not always make it easy to stay on top of posting requirements. Even an employer who is aware of the importance of displaying the most current version of employment law posters can be caught off guard by a required posting change. While some state and federal poster changes are widely publicized, other mandatory changes can be rather obscure, creating challenges in staying current with required postings.
For example, the Oklahoma Administrative Workers Compensation Act was signed in May 2013, but legal entanglements kept it from taking effect until December 2013. A revised poster was not released until February 2014, and it was again changed in June 2014 to correct claim filing information. Given the uncertain timing of the release of an updated poster, it’s easy for a mandatory poster change to occur when a busy employer isn’t looking.
New posting requirements can also be a challenge, as they might not be on the employer’s checklist or they may go into effect sooner than expected. As of January 1, 2015, California employers were required to post a new notice informing workers of their right to paid sick leave. Although the additional poster had to be displayed as of January 1, employees do not begin accruing paid sick leave under the act until July 1, 2015.
At other times, a new posting requirement can go into effect long after a law is signed. The act requiring the New Jersey Gender Equity Notice was signed into law in September 2012. Due to a lengthy commentary period and review process, the posting was not issued until January 2014 – almost a year and a half later. Even a compliance-conscious employer could have missed the release, especially after waiting more than a year for the poster’s release.
Another challenge employers face is that a change to federal law may impact the posters required by state law. When the Occupational Safety and Health Administration (OSHA) tightened its requirements for reporting employee injuries in January 2015, this had an effect on the wording of some state safety and health posters, even though the federal poster was unchanged. For example, North Carolina’s Occupational Safety and Health poster contains detailed information about reporting requirements that had to be updated in light of the federal change.
Where to look?
Learning that a new or updated poster has been released is only the first step in keeping up with posting requirements. The new posting or the latest version of the poster must then be located. Some states make this easy for employers by placing all of their postings and poster information on a single website, but in other states the postings are released by separate state agencies and are maintained on numerous agency websites.
In New Jersey, for example, the state’s antidiscrimination notices are not included in the poster list found on the New Jersey Department of Labor and Workforce Development website. An employer must visit the state’s Division of Civil Rights website to check for updates to the Employment and Family Leave Act postings. And in Washington, D.C., the minimum wage, unemployment insurance, and equal employment opportunity postings are housed on different websites.
Checking two or three state websites for poster information may not seem like it would take a great deal of effort, but when a national employer has to monitor numerous websites for all changes to federal postings as well as posting updates in 50 states, plus the District of Columbia and Puerto Rico, the process becomes extremely cumbersome. In addition, changes may occur at any time or during any month of the year, increasing the chance of missing an update or failing to post an update in a timely manner.
Do they mean me?
Employers can take some comfort in the fact that they do not need to display every employment law posting that is available. However, determining which ones apply to a specific workplace can take some effort. Some posters are required only for businesses of a certain workforce size, or for employers in a certain industry. An employer may have to examine the requirements for a specific poster to see whether or not they apply to that employer’s workplace. For example:
• The Family and Medical Leave Act (FMLA) notice is required to be displayed by covered businesses with 50 or more employees and by all public agencies regardless of the number of employees.
• The Equal Employment Opportunity is the Law poster is required for federal contractors as well as employers with 15 or more
• In Arizona, an employer in the roof tile cutting industry must display the Silica Safety poster.
• Transportation industry employers in New York State need to display the Commercial Goods Transportation Contractors & Subcontractors posting.
While an employer needs to be aware of which posters must be displayed, an employer should also be aware of which ones do not need to be posted in a particular workplace.
Minor or mandatory?
Even if an employer is able to monitor posting sites for changes and knows which posters apply, one more important fact is that not every change to a posting requires a new poster to be displayed. If the change to the poster is minor, such as a new telephone number or address, it is likely that the revised version of the poster is not required. An employer would remain in compliance with the previous version of the poster.
However, that is not the case when a poster is revised in response to a change in the law. When a poster changes because of a new law, it is mandatory for the employer to display the updated version of the poster. This change may involve significant changes to the poster text, or the addition of only a few words.
Because it can be a challenge to determine whether or not a change is minor or mandatory, an employer with only one or two locations may find it easiest to simply download and print a new poster to ensure compliance. However, this can be a time-consuming process for an employer with many locations. If the employer wants to find out if the updated poster is required by the state or federal agency, the employer will likely need to contact the agency that issued the revised posting. This can involve calling and being placed on hold, or being transferred to numerous sources before one is found who has an answer to a question about changes to a particular poster.
Worth the effort
An employer must be diligent when it comes to poster compliance. Government agencies take posting regulations seriously, and employers must stay on top of changes and new requirements to stay in compliance.
While posting compliance is an important part of running a solid business, keeping up with posting requirements can be time-consuming and cumbersome. The solution for an employer that wants to remain compliant with posting requirements, but lacks the staff and expertise to do so, maybe to find a reliable service that will ensure all of the company’s locations
are kept up to date with compliant employment law posters.
The service should be experienced in monitoring state and federal websites for changes, have a deep base of knowledge in applicable state and federal laws, and be in regular contact with state and federal agencies in order to stay on top of any changes. In addition, the service should readily communicate information about mandatory posting changes and be forthcoming about which posters a particular workplace needs.
Whether an employer decides to keep track of changes in-house or delegates that responsibility to an update service, it’s important to keep abreast of posting changes so the correct versions of required posters are on display. Postings are a proven way to keep workers apprised of their rights and responsibilities, and also show that an employer is making a good-faith effort to be compliance with government regulations. In addition, an employer who ignores posting regulations can be at risk of incurring significant fines. While it’s not always easy to keep up with the latest posting requirements, the significant role posters play in regulatory compliance makes it worth the effort.