What are labor law posters and who is required to display them?

Labor law posters are the mandated state and federal employment law notices that employers with at least one employee or more are required to conspicuously post in an area frequented by all employees. Failure to display the correct state and federal employment law notices can result in penalties, fines and lawsuits.

Do we need to have our posters in Spanish?

If more than 5% of your employees use English as a second language (ESL), then Spanish versions of the labor law posters are required in the following states: Arizona, California, Florida, Georgia, New Mexico, North Carolina, New York and Texas.

Employers required to display the Family Medical Leave Act (FMLA) Poster must consider the employees who will read the poster and provide it in their primary language, including Spanish.

It is highly recommended that employers with Spanish speaking employees post labor law posters in both English and Spanish because it is the employers’ responsibility to ensure that each employee is informed of their workplace rights under state and federal employment laws.

Is it true that we need separate labor law posters for applicants?

Yes. The following employment law notices for applicants to access must be displayed under federal law: “EEO is the Law” (EEOC), Family and Medical Leave Act (FMLA) and the Employee Polygraph Protection Act (EPPA).

If your business participates in the E-Verify™ program, then you must display the English and Spanish version of the “E-Verify & Anti-Discrimination Notice” for job applicants to see.

Please note that some state employment postings are required to display for applicants. The law itself will state for whom it must be displayed.

Can we use electronic labor law posters to meet posting requirements?

Physical posting of state and federal employment notices are required by law. Employers must display the labor law posters in an area visited regularly by employees. The Department of Labor is looking at the possibility of online posting as a legal option for employers, either in addition to or in replacement of, physical labor law posters. However employers must currently continue to display physical posters at their workplace.

How do I display labor law posters for electronic applicants?

State and federal employment law notices must be physically displayed. Electronic labor law posters do not meet the legal posting requirements by both the state and federal agencies. Although some laws allow you to post electronic notices in addition to the physical posting requirement. Applicants will access the posters when they visit your workplace for an in-person interview.

What are the employment law posting requirements for employees that work from home?

Employers must inform all employees, no matter where they work from, of their rights under state and federal employment laws. An employer has two options for satisfying this requirement with employees that work from home: you can send each home-based employee their own copy of the labor law poster or you can post the electronic labor law posters to a company intranet for them to access.

If you have telecommuter employees—employees that visit an office on a regular basis—then displaying the labor law posters at the office will meet your obligations.

We have employees that work from remote job sites or in a kiosk with limited to no wall space. Can we just resize the employment law notices to fit in a binder?

No. Certain employment law notices are sized to meet the regulating agency’s requirements. By resizing the notice to a font that does not meet agency requirements or is difficult to read, you can be found out of compliance. For example, the “OSHA Job Safety and Health: It’s the Law Poster” must be at least 8.5″ x 14″ inches with 10 point type. If you were to resize this notice, you will be out of compliance with OSHA requirements.

For more than one remote worker in a single location, the state and federal employment law notices should be in area that all remote workers visit regularly. Specific regulations for one remote worker, like those that work from home, have not been passed. Employers can ensure that these remote workers have access and are informed of their state and federal labor laws by issuing electronic labor law posters. These posters can be sent via email or posted to a company intranet for their remote worker to access.

If my state’s minimum wage is higher than the federal, do I still have to post the federal minimum wage?

Yes. The state and federal minimum wage posters both must be displayed, but employers will still pay whichever rate is higher. Please note that rules can differ for bonus, tip share, commission or stipend employees, but you are not exempt from posting the minimum wage notices for state and federal.

I am a federal contractor, do I have different labor law posters to display?

All federal Contractors have six notices that are specifically required:

• EEO is the Law Notice – includes GINA
• OSHA’s Employee Whistle-Blower Rights Notice
• Walsh-Healey Public Contracts Act
• E-Verify & Anti-Discrimination Notice
• National Labor Relations Act Notice (NLRA)
• You Have the Right to Work Notice

Where do I display the labor law posters for employees?

Labor law posters should be “conspicuously” displayed in area that is frequented by all employees on a regular basis. Examples of such locations include: designated bulletin boards in the break room, above time clocks, in the employee lounge, in a cafeteria or a lunch room.

We have multiple buildings at our workplace, do we have to post the employment law notices in each building?

The posting requirements for state and federal employment notices are that posters must be accessible by all employees on a regular or daily basis. If all your employees do not report to a central location on a regular basis, then you are required to post the notices at each building to meet your obligations.

However, if all employees are required to meet at a central location or headquarters regularly, and have the opportunity to view the postings, then you meet state and federal requirements.

Our company has one building with multiple floors. Are we required to display the employment law notices on each floor in the break room or can we just display them in the cafeteria?

It depends. If you can demonstrate that all employees regularly visit one floor or location, such as the cafeteria, then posting the employment law notices there is compliant. If all employees do not regularly visit the one location, then you are required to display the notices in each break room or other central locations on each floor.

When should I update or replace my labor law posters?

State and federal labor law posters must be replaced whenever the language of the employment law changes. These are classified as mandatory changes or updates. Employers are required to post the correct version of the notice at their workplace. Failure to post the required version can lead to penalties and fines, just as if you had not posted anything at all. Always check your posters on a regular basis to ensure you have the current version posted.

Can I be fined for not having labor law posters or not updating them?

Yes. Failure to post the required, current state and federal employment law notices can result in fines up to $17,000.

• Fines vary by poster and the agency requiring the poster. Fines range from $110 to $10,000.
• The maximum fine is usually applied only if the employer repeatedly or knowingly violated the law.

It is not common for state or federal agencies to inspect your workplaces specifically for labor law posters, although it can happen. In most cases, a federal or state agency investigates your workplace and having the correct labor law posters displayed are part of their investigation.

What is a mandatory and non-mandatory update?

A mandatory update is a legislative change or new bill passed that makes the related employment law notice out of compliance. Usually the language of the law on the poster has changed and that is why the update is mandatory. The government agency who releases the new notice indicates that it must be displayed and older versions are not compliant. Employers must replace their labor law posters for ones with the mandatory update.

A non-mandatory update is a minor revision to the poster itself and the regulating government agency confirms that prior versions of the poster, as well as the revised version, are compliant. Examples of non-mandatory changes include adding/removing office addresses, updating the governor’s name or changes in poster format.

What is included on each labor law poster?

The mandated state and federal employment law notices for general businesses are included on each poster. This includes state minimum wage, federal minimum wage, GINA, OSHA, EEOC, FMLA and USERRA. If you purchase a labor law poster specifically for federal contractors, it includes NLRA, EEOC with GINA, OSHA Employee Whistleblower Rights, Walsh-Healey Public Contracts Act, E-Verify and Right to Work.

The “No Smoking” notice and industry-specific notices are not included with your state and federal labor law poster, but can be purchased separately or in a package kit. These notices usually apply to customers and employees; and sometimes need to be posted in areas separate from the labor law posters. (Labor Law Center)

Are my labor law posters current? Am I in compliance?

I am happy to work with any organization and conduct a thorough audit of all labor and employment law posters.

Additional Updates:

Illinois VESSA poster has been updated to reflect that victims of gender violence are entitled to the same protections provided to victims of domestic and sexual violence. This posting appears on the Illinois Combination Poster. This is a mandatory change.

After delaying the opening of the 2019 EEO-1 Component 1 Data Collection on May 8, 2020 in light of the COVID-19 public health emergency, the U.S. Equal Employment Opportunity Commission (EEOC) announced today that the 2019 and 2020 EEO-1 Component 1 data collection will open on Monday, April 26, 2021. 

The deadline for submitting 2019 and 2020 EEO-1 Component 1 data will be Monday, July 19, 2021.  Recognizing the continuing differential impacts of the pandemic on workplaces nationwide and the requirement to submit two years of EEO-1 data, the EEOC is extending the data collection period this year from 10 weeks to 12 weeks to provide employers additional time to file.

The EEO-1 Component 1 collects workforce data from employers with 100 or more employees (and federal contractors with 50 or more employees).  The EEOC will begin to formally notify EEO-1 filers via email beginning on March 29, 2021.  Filers should begin preparing to submit data in anticipation of the April 26 opening of the data collection period.  (EEOC)

WHO NEEDS TO FILE THE EEO-1

1. A: All companies that meet the following criteria are required to file the EEO-1 report annually:
2. A: No, your company must meet both requirements of 50 employees and the government contract worth $50,000 or more.
   1. https://www.eeoc.gov/employers/eeo1survey/faq.cfm

Legal Requirements

• Recordkeeping Requirements
• Download the “EEO is the Law” Poster in English (including a screen-readable electronic version), Spanish, Arabic, and Chinese
  Employers are required to post a notice describing the federal employment discrimination laws.
• EEO Reports/Surveys
  Employers who have at least 100 employees and federal contractors who have at least 50 employees are required to complete and submit an EEO-1 Report (a government form that requests information about employees’ job categories, ethnicity, race, and gender) to EEOC and the U.S. Department of Labor every year.

Revised April 2021

Original Publication: April 16, 2018

Exempt and nonexempt, hourly, salaried, and salaried nonexempt are definitions that most of us know and currently use to classify the positions in our organizations.  We know that we must classify individuals in an exempt or nonexempt (overtime eligible) position for payroll, overtime and reporting purposes.  There are numerous definitions to define exempt level positions under the current FLSA (federal) regulations.  Remember that the salary threshold in New York State varies for executive and administrative professionals, when comparing with the federal law.  As leaders, we need to ensure our classifications for each position within our organizations are accurate and our workforce is paid correctly for work performed and hours worked.

Fact Sheet #17A: Exemption for Executive, Administrative, Professional, Computer & Outside Sales Employees Under the Fair Labor Standards Act (FLSA)

The 6 exempt level definitions under the FLSA:

1. The Executive Exemption: Primary duties include managing the enterprise, directing the work of at least two or more full-time employees and has the authority to hire and fire employees.  The link(s) goes into specific duties tests on the exemptions.  NY State Law
2. The Administrative Exemption: Primary duties must be the performance of office or non-manual work related to the management of the business and exercising discretion and independent judgement with respect to matters of significance.  NY State Law
3. The Learned Professional Exemption: Primary duties must be the performance of work requiring advanced knowledge, which is predominantly intellectual in character and requires discretion and judgement.
4. Computer Employee Exemption: Primary duties consist of the application of systems analysis techniques, design development, documentation, analysis, creation, modification of computer systems and designing, testing or modifying computer programs.  This exemption is complex, ensure you read through the FLSA definition prior to deciding and thoroughly understand the duties test. 
5. The Outside Sales Exemption:  Primary duties must include making sales, obtaining orders or contracts.  The employee must be regularly engaged away from the employer’s place of business. 
6. The Highly Compensated Employees Exemption: Perform office or non-manual work and paid total annual compensation of $100,000 or more.  They regularly perform at least one of the duties of an exempt executive, administrative or learned professional identified in the standard tests of exemption.
7. Other Definitions:                   Blue Collar Worker Police Officers, Fire Fighters and First Responders

FLSA Exempt Level at the Federal Level

“There are three main criteria that must be met for a position to qualify for a white-collar  exemption:

• Payment on a salary basis, with some exceptions;
• Payment of a minimum salary, currently $684 per week ($35,568 annually), also with some exceptions; and
• A primary duty test specific to each type of exemption listed above.

Additionally, a highly compensated employee making $107,432 or more annually who performs at least one of the duties of an exempt position described above may be classified as exempt from overtime. Some states also have their own criteria for exemptions that must be complied with.” (SHRM)

New York State Exempt Administrative and Executive Minimum Salaries
The minimum salary for exempt executive and administrative employees in New York will increase as follows:

• Nassau, Suffolk, and Westchester counties: $1,050 per week, which equals $54,600 per year.
• The rest of the state outside New York City: $937.50 per week, which equals $48,750 per year.

(The minimum in New York City previously increased to $1,125 per week.)

Ensure all positions are classified correctly, exempt vs. non-exempt.  Just because someone has a manager or director title does not mean it is exempt level work.  Reviewing this information annually will ensure accurate and legal job classifications.  I am happy to work with any organization classifying positions.