Federal
©2018 ComplyRight, Inc.
Introduction
Posting compliance gets more complicated every year. This e-guide
will shed light
on the common mistakes and misunderstandings, so you’ll know
exactly what it
takes to be in complete compliance.
Beyond the posting basics for every U.S. employer, you’ll learn
more about the new
and/or specific posting requirements that may apply to your
business. For example:
Spanish postings (even if you have no Spanish-speaking
employees)
City or county postings
Industry postings
You’ll also get valuable insight on where to post, how many posting
locations
to maintain and the real-world risks of overlooking any of the
requirements.
The Big Question: What’s the Purpose of Workplace Postings?
Answer: To inform employees of their legal rights (and
responsibilities)
under federal, state and local regulations. As a U.S. employer,
you’re
responsible for giving all your workers access to this important
information.
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©2018 ComplyRight, Inc.
Back to Basics: A Posting Compliance Overview
Before we get into the top eight compliance facts, let’s review the
basics. As
you may already know, all employers must display certain federal
and state
employee-facing postings. And, if you’re in a city or county with
mandatory
posting requirements, you must display them, too.
Currently, all U.S. employers are required to display six federal
postings:
Equal Employment Opportunity Commission (EEOC): Covers
anti-discrimination provisions and legally protected
characteristics.
Occupational Safety and
Health Administration (OSHA):
Highlights important workplace
(FMLA): Explains employee leave
employer responsibilities.
(USERRA): Addresses re-employment after military leave,
anti-discrimination provisions and health insurance issues.
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4
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Poster Guard Tip FMLA typically doesn’t apply to businesses with
fewer than 50 employees. These businesses aren’t required to
display the federal FMLA posting. If they do, they should include a
disclaimer explaining that FMLA isn’t applicable.
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Fair Labor Standards Act (FLSA): Notifies employees of the
federal
minimum wage rate, overtime rules and child labor laws.
Employee Polygraph Protection Act (EPPA): Describes the rules
around lie detector tests in employment (a posting
requirement,
even if you don’t use lie detectors).
Beyond these federal postings, you’re
responsible for additional state postings.
Depending on the state, this can add
up to 15 additional posters for a total
of 21 federal and state postings per
location. You may also have extra
posting obligations if you’re in certain
cities or counties.
As you can see, there are many layers to labor law posting
compliance.
And if you’re in certain industries, or have government contracts,
your
posting requirements go even deeper.
DID YOU KNOW? No two states have the same requirements, as each
state operates its own government agencies and passes its own laws.
Arizona and Arkansas … Missouri and Mississippi … New York and New
Jersey … they all have completely different posting
requirements.
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State Total Federal & State Mandatory Posters
Total Number of Issuing Agencies
(State and Federal)
Alabama 11 5
Alaska 12 5
Arizona 18 9
Arkansas 10 7
California 21 7
Colorado 13 5
Connecticut 17 8
Delaware 14 4
D.C. 17 7
Florida 11 8
Georgia 15 7
Hawaii 15 5
Idaho 10 6
Illinois 12 8
Indiana 15 9
Iowa 11 5
Kansas 11 6
Kentucky 13 6
Louisiana 20 5
Maine 14 6
Maryland 17 7
Massachusetts 13 7
Michigan 15 7
Minnesota 12 6
Mississippi 11 6
Missouri 12 5
Total Number of Issuing Agencies
(State and Federal)
Montana 11 5
Nebraska 10 5
Nevada 19 7
©2018 ComplyRight, Inc.
POSTING LAW FACT #1:
Federal and State Agencies Aren't the Only Authorities That Issue
Postings
A common mistake is overlooking local posting requirements — a new
trend
in posting compliance, with more and more cities and counties
issuing
individual postings.
Local-level postings cover a variety of employment laws similar to
federal
and state posters. What’s different, though, is that cities may
choose to
pass laws that are more generous to employees than federal or state
laws.
For example, many cities have a higher minimum wage, paid medical
leave
rules and different discrimination guidelines and protected
characteristics
(such as sexual orientation).
Here is Just a Sampling of Local Postings You May Need for Total
Compliance:
You must display these city and county postings in addition to the
federal
and state postings, even if the information seems to conflict.
States have the
authority to pass laws more generous to employees than federal law,
and
in most states, local governments can pass laws more generous than
state
law. As an employer, it’s not enough to follow the law that most
benefits
employees — the highest minimum wage, for example, or the
longest
period for medical leave. You also must display every related
poster.
Albuquerque, NM – Minimum wage poster
Broward County, FL – Wage recovery poster
Chicago, IL – Minimum wage poster
Denver, CO – Anti-discrimination poster
Miami Beach, FL – Anti-discrimination poster
New York, NY – No smoking poster
Newark, NJ – Paid sick leave poster
Philadelphia, PA – Fair chance poster
Portland, ME – Minimum wage poster
Santa Fe, NM – Living wage ordinance poster
Santa Monica, CA – Minimum wage poster
Tucson, AZ – Non-discrimination poster
©2018 ComplyRight, Inc.
DID YOU KNOW? Some recent DOL opinion letters and court cases have
determined that electronic notices are a reasonable alternative for
home-based workers.
POSTING LAW FACT #2:
Posting Laws Affect Remote Workers
Do you share mandatory labor law postings with your remote
workers?
This issue is getting more and more attention because of the rise
in
telecommuting employees.
By law, you’re required to provide mandatory notices to ALL
employees.
Although the regulations don’t specify the format — paper or
electronic —
you’re responsible for communicating the
same information to your home-based
workers as those on-site.
address this area of posting compliance,
you’ll need to use your best judgment. If
your remote employees come to your office
at least 3-4 times a month — and current labor law postings are
displayed
there — that should be sufficient. However, if these employees
visit less
frequently, you should consider making the notices available via
email
or the Internet in a format they can access at any time.
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©2018 ComplyRight, Inc.
Posting in Foreign Languages Isn't Always Optional
Foreign language postings apply to a wide range of businesses. In
22 states
— plus Washington, D.C. — you must display certain postings in
Spanish,
regardless of workforce demographics or the presence of any
Spanish-speaking employees.
To meet foreign language requirements, employees in the following
states
must display certain postings in English and Spanish:
If your business is in one of these
states, you are required to display
one or more state postings in English
and Spanish, even if you have no
Spanish-speaking employees.
Tennessee
Texas
Utah
Virginia
DID YOU KNOW? In Puerto Rico, all postings must be displayed in
Spanish. English postings aren’t required but are considered a best
practice.
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©2018 ComplyRight, Inc.
EXCEPTION TO THE RULE:
Pennsylvania is the only state where all companies that employ
Spanish- speaking workers must display all state postings in
English and Spanish.
Actual Locations with Spanish-Speaking Employees
If you have business locations with a
significant number of Spanish-speaking
you must display all federal postings in both
English and Spanish.
definitive on this, so most employers display
the federal posting in Spanish if it affects
10 percent or more of their workforce at any
given location.
If you have Spanish-speaking employees, your state postings
are
a consideration, too. On a state level, there’s no law mandating
you
to display every poster in both English and Spanish, even if you
employ
a lot of Spanish-speaking employees who aren’t proficient in
English.
Yet most employers who must post the bilingual federal poster
for
their Spanish-speaking employees choose to post state
postings
in both languages, too.
Although it’s not required and it’s not a
black-and-white law, posting both federal
and state posters in Spanish and English
is a best practice that can provide added
protection in a legal dispute.
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©2018 ComplyRight, Inc.
DID YOU KNOW? Many states update their minimum wage rates every
January. However, other states update their minimum wages at
different times of the year. It doesn’t always happen at the
beginning of the new year.
POSTING LAW FACT #4:
Posters May Need to Be Updated More than Once a Year
Labor law posting requirements change all the time, not just once a
year.
Perhaps your business is in a state where the state minimum wage
rate increases once a year (typically January), so you update your
posters then. However, if you ONLY update your posters for the
minimum wage change, you could be out of compliance throughout the
rest of the year when other postings change. The laws affecting
postings are revised all the time — whether it’s new laws being
passed, or existing laws being amended or repealed.
On average, there are 150 state posting changes a year — and at
least half of these require an immediate poster update or
replacement. Local changes occur even more frequently.
If you’re only updating your posters once a year, you may be
compliant with your state minimum wage, but you’re at risk of
noncompliance with other postings.
Mandatory Federal and State Poster Changes by State for
2014-2017
EXTREME LEVEL (9-20 Poster Changes)
HIGH LEVEL (6-8 Poster Changes)
MODERATE LEVEL (3-5 Poster Changes)
LOWER LEVEL (1-2 Poster Changes)
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©2018 ComplyRight, Inc.
POSTING LAW FACT #5:
Your Workers’ Comp Provider Won’t Give You Everything You Need for
Free
Many workers’ comp insurance providers supply certain posters to
their
clients as a convenience. However, they typically supply only a few
of the
required federal postings (the OSHA safety poster, most
commonly),
and may not provide any state or local postings at all. And they
rarely
supply updated postings when requirements change. Remember:
Partial compliance equals partial protection.
No One-Stop Shop for Free Government Posters
Federal, state and local agencies often don’t work together, so
there’s
no central place or website for all the necessary posters you are
required
to post. In fact, about 175 agencies nationwide are responsible for
issuing
at least 380 mandatory posters.
To manage posting compliance for just one business location, you
would
have to contact up to nine agencies for federal and state posters.
On top of
that, around 22,000 U.S. cities and counties have their own
governing agencies
and ordinances. Not all of them have required postings, but many
do.
Monitoring Takes Considerable Effort
To handle posting compliance on your own, you must research every
posting
requirement (and change) and contact the appropriate agencies in
your
jurisdiction — federal, state and local. This takes considerable
time and
effort, which makes it a daunting task for most businesses.
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ARE YOU A Federal Contractor?
If your business is classified as a Federal Contractor, you are
required to follow many regulations that don’t apply to other
businesses. Federal contractor status can affect your minimum wage,
the benefits you offer, your paid time off policy — and even the
labor law postings you must display.
Does your business receive any
federal funding?
government?
or services to the federal government?
Does your business work on federally financed
construction projects?
under the American Recovery and Reinvestment Act of 2009?
Is your business contractually obligated to use E-Verify?
If you answer Yes to any of these questions, you’re likely
classified as a Federal Contractor. For details about special
requirements, CLICK HERE.
Brought to you by
ARE YOU A Federal Contractor?
If your business is classified as a Federal Contractor, you are
required to follow many regulations that don’t apply to other
businesses. Federal contractor status can affect your minimum wage,
the benefits you offer, your paid time off policy — and even the
labor law postings you must display.
Does your business receive any
federal funding?
government?
or services to the federal government?
Does your business work on federally financed
construction projects?
under the American Recovery and Reinvestment Act of 2009?
Is your business contractually obligated to use E-Verify?
If you answer Yes to any of these questions, you’re likely
classified as a Federal Contractor. For details about special
requirements, CLICK HERE.
Brought to you by
POSTING LAW FACT #6:
Posting Requirements Aren’t the Same for All Types of
Businesses
Certain businesses have additional, industry-specific posting
requirements.
Some prime examples are public-sector employers, federal
contractors,
employers in the healthcare industry and employers in the
restaurant industry.
Public-sector employers are government employers (not to be
confused
with publicly traded companies). Additional requirements for the
public
sector include an E-Verify poster,
Right to Know posters, whistleblower
protection posters and notices about
electronic monitoring.
or you have any contracts with the
government for goods or services —
you’re also responsible for additional
postings. Your specific posting
of contracts you have and with what
government agencies (and in some
cases, the dollar amount of the
contracts). If you don’t comply with
the applicable federal contractor
posting requirements, you could
government contract or funding.
©2018 ComplyRight, Inc.
PAID SICK LEAVE (NEW! JAN. 2017)
MINIMUM WAGE (UPDATED! JAN. 2018)
“EEO IS THE LAW” SUPPLEMENT
PAY TRANSPARENCY STATEMENT
DOD FRAUD HOTLINE
E-VERIFY/RIGHT TO WORK (UPDATED TWICE IN 2017!)
WALSH-HEALEY PUBLIC/SERVICE CONTRACTS
ARRA WHISTLEBLOWER RIGHTS
DHS FRAUD HOTLINE
DAVIS-BACON ACT
DOT FEDERAL HIGHWAY CONSTRUCTION
If you’re in the healthcare field, you may need up to 15 additional
notices,
depending on your state and the type of facility you operate.
Examples
include radiation notices and employee notices regarding patient
rights.
Run a restaurant? Depending on your state, your additional
posting
requirements may include choking assistance information, notices
for tipped
employees, CPR procedures and information about serving alcohol to
minors.
There are other industries, such as agriculture and transportation,
with
industry-specific requirements, but public sector, healthcare and
restaurants
are most affected.
DID YOU KNOW? Federal contractor posters tend to change more
frequently than federal and state postings. These changes include
the development of new posters and mandatory updates to current
posters.
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©2018 ComplyRight, Inc.
POSTING LAW FACT #7:
You May Need to Display More than One Set of Posters
“Where should we post?”
“Do we need multiple poster sets for each location? Or is one set
enough?”
These are common questions — and for good reason because not
posting
in proper locations (or not posting adequately throughout your
facility)
can be a problem.
The general rule is that posters must be displayed in prominent and
conspicuous
locations throughout your business where they’re accessible to all
employees.
Accessibility implies areas that are frequented by your entire
workforce.
In a small office, you can satisfy this
requirement by posting in one location, such
as an employee break room or hallway. Larger
companies, however, may need more than one
posting site to provide access to all employees.
To ensure compliance, you should target highly
visible areas and/or spots that get the most employee traffic. In a
large
facility, this could mean posting near each employee entrance, as
well the
employee break room or HR department. Another option is to hang
posters
near time clock stations.
Poster Guard Tip At minimum, you must have one complete updated
labor law poster set for each business location.
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©2018 ComplyRight, Inc.
Job Applicant Postings
In addition to your employees, you also need to meet posting
requirements
for job applicants. Four of the six mandatory federal postings must
be
displayed in areas where employees and applicants can view them. If
you
have applicants coming into your facility for any reason — whether
to fill
out an application or participate in an interview — you should
display the
necessary posters on the wall, just as with the regular
employee-facing
posters. If you accept job applications on-line, you must provide a
link
to the current postings.
Unfortunately, there is no magic number or formula provided by
the
regulations or the agencies. It really depends on the layout of
your facility
or office space.
©2018 ComplyRight, Inc.
Ignoring Posting Laws Carries Serious Risk
“Government fines are so small, it’s no big deal if we don’t
post.”
“There are no poster police out there … so how would I even get
caught?”
It’s not unusual for business owners to underestimate the
importance of posting compliance — or to think the risk is so
minimal it doesn’t really matter. But this could get you in
trouble.
First, when it comes to the fines, the amounts are steep — and they
can add up significantly if you have violations at multiple
locations. On just the federal level, fines can be more than
$34,000 per location for posting violations.
On a state and local level, the government posting fines are
typically between $100 and $1,000 per violation. (Each posting
carries its own fines, because every agency and posting law is
different.)
What About the Poster Police?
The second misconception is that no one polices posters, so there’s
no need to worry about fines. True, the federal government rarely
sends out representatives JUST to enforce posting laws. (This is
more likely on a state or city level, when an enforcing agency or
state attorney conducts a sweep of local businesses.)
This doesn’t mean you’re free from federal fines, however.
Federal-level posting fines typically are assessed because an
agency is on your premises for another reason. It could be a Form
I-9 audit, an OSHA inspection, an EEOC onsite investigation or even
a Department of Labor (DOL) follow-up to an employee complaint. The
complaint or investigation could be completely unrelated to labor
law posters, but the agencies will check posting compliance as part
of an onsite visit.
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©2018 ComplyRight, Inc.
The real danger with posting violations concerns employee lawsuits
and
disputes. Cutting corners with posting compliance could hurt you in
two ways:
Statute of limitations — The statute of limitations is a big
advantage for
employers because it allows you to dismiss a claim that was filed
too late.
For example, the statute of limitations for a federal
discrimination claim
is 300 days. For an FLSA overtime case, it’s two years. So,
typically, if your
business gets a claim from a former or existing employee outside of
the
established time period, you can move to have it dismissed.
But problems can occur if there’s a posting violation. If you have
an
outdated poster — or no poster at all — the courts may decide that
the
statute of limitations doesn’t apply because you didn’t notify
employees
about their legal rights and responsibilities in the first place.
You can’t use
it as a defense, and the case may move forward against you.
“Bad faith” — Another way posting compliance comes into play is
as
evidence of “bad faith.” This term refers to an intentional,
dishonest act by
not fulfilling legal obligations. A finding of bad faith can
directly affect your
damages in an employee lawsuit — either by inflating a damage
award
against you, or standing in the way of a good-faith defense that
would
otherwise reduce or eliminate your damages.
CONCLUSION:
As you can see, labor law posting compliance is extremely complex.
Even
a small business can have substantial requirements from multiple
federal,
state and local agencies. If you don’t have the resources to get
your business
fully in compliance, consider using a reputable subscription
service. For an
annual fee, you can have peace of mind knowing your business is
protected.
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PRACTICAL SOLUTIONS FROM POSTER GUARD ®
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