This tends to be an area that many of us forget, if we do not subscribe to a poster service that sends our organization an updated poster as laws and regulations change. Employers are required to have labor posters conspicuously posted at each organizational facility. What if we do not have a facility, but have a traveling workforce (cleaning crew, landscapers, etc. that do not meet) or telecommuters? Employers are not required to post federal and state posters in a home office. However, we are responsible to ensure all of these employees have access to these postings. We can post these on an intranet site, send a link to the intranet site, we can e-mail, mail or fax when there are updates. For the traveling workforce, my recommendation is to create laminated binders to keep in vehicles and update any postings as laws and regulations change. We also need to communicate these changes to the workforce.
Other Thoughts on Posting Requirements:
- “Fair Labor Standards Act (FLSA) regulations, for example, to physically display posters “in conspicuous places in every establishment where such employees are employed so as to permit them to observe readily a copy” (29 C.F.R. §516.4). Required posters must be displayed so they are easily visible to the intended audience, according to the U.S. Department of Labor.
- Executive Order No. 11246, which governs affirmative action by federal contractors, indicates that required posters must be displayed in “conspicuous places accessible to all employees, job applicants and union representatives”(41 C.F.R. §60-1.42).
- The Family and Medical Leave Act (FMLA) regulations, which apply to employers with 50 or more employees, do state that “electronic posting is sufficient to meet this posting requirement as long as it otherwise meets the requirements of this section.” However, the act also requires covered employers to post a notice “prominently where it can be readily seen by employees and applicants for employment” (29 C.F.R. §825.300).”[i]
- “With a few exceptions (FMLA, MSPA and Executive Order 13496), the U.S. Department of Labor’s regulations do not require posting of notices in Spanish or other languages…
- The federal Family and Medical Leave Act (FMLA) regulations state, “Where an employer’s workforce is comprised of a significant portion of workers who are not literate in English, the employer shall provide the general notice in a language in which the employees are literate.” SeeFMLA regulation 825.300, (4).
- While no similar regulation exists for the Fair Labor Standards Act (FLSA) poster, the Department of Labor (DOL) advises, “Although there is no size requirement for the poster, employees must be able to readily read it” and goes on to list the languages the poster is provided in, adding, “There is no requirement to post the poster in languages other than English.” See The Fair Labor Standards Act…
- OSHA regulations do not specify or require employers to display the OSHA poster in a foreign language. However, OSHA encourages employers with Spanish-speaking workers to also display the Spanish version of the poster…
- State laws and agencies make similar requirements and recommendations. Some states and localities, including but not limited to Arizona, California, Connecticut, Washington, D.C., Illinois, New Jersey, New Mexico, New York and Tennessee, include regulatory requirements for posters to be posted in Spanish when a certain percentage of the workforce uses English as a second language.”[ii]
- “There are three federal employment law posters that must be available to applicants: the FMLA poster, the Equal Employment Opportunity (EEO) poster and the Employee Polygraph Protection Act (EPPA) poster…
- Most of our poster regulations were written before the Internet was used for job postings. Until the regulations are revised, please place a prominent notice on the website where the job postings are listed stating that “Applicants have rights under Federal Employment Laws” and link to the three posters: Family and Medical Leave Act (FMLA)Poster (FMLA regulations were revised to allow for electronic posting as long as such posting otherwise meets the requirements of the regulations.); Equal Employment Opportunity (EEO) Poster; and Employee Polygraph Protection Act (EPPA) Please note, however, that posting the notice on the employer’s website in this manner is not a substitute for posting these EEO posters in conspicuous places on the employer’s premises where otherwise required.”[iii]
- “Old employment law posters should be saved to help prove past compliance, even though retaining old posters isn’t required, management attorneys say. Employers also should take pictures of old posters with time-and-date stamps to have a physical record that they were displayed…
- “From a best-practices perspective, retaining old posters makes sense to help prove past compliance,” said Aaron Warshaw, an attorney with Ogletree Deakins in New York City. “For example, in the context of employment litigation, posters can sometimes be relevant evidence to show that employees were informed of their applicable rights.”
- He recommended that employers retain old posters in paper or electronic format, “as long as they are clearly marked and not accidentally put back into circulation.” Save them for the applicable time employees have to sue under the law—the “statute of limitations”—such as three years for federal wage and hour posters, he said.””[iv]
These are all federal rules and requirements; states can have differing laws and regulations surrounding labor poster requirements. In New York State, Unemployment, Short-Term Disability, Workers’ Compensation, Paid Family Leave, Sexual Harassment, etc. are separate postings. New York City and other locals have differing posting requirements; sick leave, sexual harassment, breastfeeding, etc.
It is recommended to audit and review posters annually to ensure legal compliance. The Disability, Workers’ Comp, Paid Family Leave do have expiration dates on for policies. You may need to request a new poster from your carrier. Minimum wage increases at the end of the year, this will require a new posting. Could we see a salary history ban posting or other updates on the NYS Division of Human Rights posting? Time will tell on this. Continue to monitor for changes and updates to posters, work with a poster provider to sign up for automatic mailing as requirements change.
The Department of Labor has announced updates to the Notification of Employee Rights Under Federal Labor Law poster (May 2019), required to be posted (in 11×17 format) by federal contractors and subcontractors pursuant to Executive Order 13496.
The changes include:
- a new telephone number for the National Labor Relations Board (NLRB), the agency responsible for enforcing the NLRA – 1-844-762-NLRB (6572)
- new contact information for individuals who are deaf or hard of hearing through the Federal Relay Service (Jackson and Lewis)
NY Labor Law Pay-Equity Amendments Expand Employee Protections
“Employers will be prohibited from asking applicants orally or in writing for their salary history and will not be able to ask current employees for salary history as a condition of promotion. Further, employers will no longer be permitted to seek salary history information from current or former employers of applicants or current employees. Lastly, employers cannot refuse to interview, hire, promote, or otherwise retaliate against an applicant or employee who does not provide their salary history… The amendment permits applicants to voluntarily provide their wage or salary history as long as it is unprompted. In addition, an employer may verify wage or salary history when they have made an offer of employment to an applicant and provided the compensation structure, and the applicant responds with their wage of salary history as basis for higher starting pay…It will go into effect on January 6, 2020 and applies to both public and private employers.
The second NY Labor Law amendment is an expansion of existing prohibitions against unequal pay… The amendment expands this by making it illegal to pay someone less based on protected characteristics, including age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or domestic violence victim status…The expansion to the pay-equity law will go into effect on October 8, 2019.” (Barclay Damon LLP)
Continue to monitor for any changes related to these two pieces of legislation and update employer information as needed. We also need to communicate and train throughout the organization, to ensure legal practices. Also, watch for any updates or requirements for new postings.
Colorado Bans the Box:
“In an effort to prevent persons with criminal records from being automatically ruled out for job vacancies, Colorado Governor Jared Polis has signed “ban the box” legislation. The new law will go into effect in September 2019 for employers with at least 11 employees, and employers with fewer than 11 employees have until September 2021 to comply.” (SHRM)
Alabama Pay History Inquiry Restriction:
“On June 10, 2019, Alabama enacted the state’s first wage equity law. The Clarke-Figures Equal Pay Act (CFEPA) mimics, in large portion, the federal Equal Pay Act (EPA), but includes race as a protected classification in addition to sex. The CFEPA also prohibits retaliation based on an applicants’ failure or refusal to provide their wage history and sets forth employer recordkeeping requirements. Employers of any size are subject to the act. There is no small employer exception. The CFEPA takes effect September 1, 2019.” (SHRM)
Maine Pay History Inquiry Ban:
“The law amends existing pay equity legislation and generally prohibits employer inquiries into the salary history of prospective employees until after an offer of employment has been made.” (SHRM) This law takes effect on September 17, 2019.
[i] https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/determinetheirpostingrequirements.aspx
[ii] https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/laborlawposterrequirementsforthemultilingualworkplace.aspx
[iii] https://www.shrm.org/ResourcesAndTools/tools-and-samples/hr-qa/Pages/postingrequirementsapplicantswhichfederalemploymentpostersmustbeseenbyapplicants,andhowshouldanemployercomplywiththisrequir.aspx
[iv] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/save-and-photograph-old-posters.aspx
BURR CONSULTING, LLC 