“The U.S. Department of Labor (DOL) released a final rule on Jan. 11 to raise its civil penalty amounts for legal violations to adjust for inflation. The new penalty amounts took effect on Jan. 15.
The federal Inflation Adjustment Act requires federal agencies to upgrade their monetary penalties based on inflation each year. The Consumer Price Index, a measure of inflation, rose 1.03 percent from October 2022 to October 2023, according to the U.S. Bureau of Labor Statistics. Thus, the DOL penalties will be multiplied by 1.03 percent and rounded to the nearest dollar. The new amounts will apply to any violation that occurred after March 23, 2018, with the penalty being assessed after Jan. 15, 2024.
The inflation correction applies broadly to a variety of federal employment laws. For example, under the Fair Labor Standards Act, the penalty for a child labor violation increased from $15,138 to $15,629.
Under the Family and Medical Leave Act, the penalty for violating the posting requirement jumped from $204 to $211.
The minimum penalty for a willful violation of the Occupational Safety and Health Act (OSH Act) rose from $11,162 to $11,524. The maximum penalties for serious and other-than-serious OSH Act violations increased from $15,625 per violation to $16,131 per violation. The maximum penalty for willful or repeated OSH Act violations increased from $156,259 per violation to $161,323 per violation.
Civil penalties are “often pushed into the background” and don’t get “sufficient emphasis,” compared with liquidated damages, said Eric Su, an attorney with Crowell & Moring in New York City. “Perhaps more-pronounced penalty amounts will get more attention.” (SHRM)
“In addition to the increasing number of posters employers are required to physically display, effective December 16, 2022, New York employers must now furnish all employees with digital copies of all required posters via email or by posting them on the employer’s website.
Section 201 of New York’s Labor Law requires employers to furnish employees with “copies or abstracts” of laws, rules, and orders, that are designated by the New York State Department of Labor (NYDOL) as affecting employees.
Traditionally, this obligation was satisfied by an employer posting the copies and abstracts “in a conspicuous place on each floor of the premises.” Indeed, the NYDOL’s guidance has previously indicated that furnishing required notices electronically only may not be sufficient for employers to satisfy their obligations under Section 201. The physical requirement piece of Section 201 has now been confirmed with the latest amendment.
On December 16, 2022, Governor Kathy Hochul signed into law an amendment to Section 201 that expanded the posting requirements. Employers must now:
- Furnish digital versions of all copies and abstracts required under New York law or the NYDOL’s regulations to all employees through either the employer’s website or by email;
- Furnish digital versions of all other documents required to be physically posted in the workplace pursuant to any state or federal law or regulation to all employees through either the employer’s website or by email; and
- Provide notice to employees that all physically posted notices are available electronically.
The amendment language indicates that these new requirements do not substitute an employer’s obligations under New York or federal law to physically display postings in a conspicuous place in the workplace. Instead, the electronic furnishing of postings is an additional requirement for employers to satisfy.
Failure to comply with these new requirements can result in monetary fines. Additionally, non-compliance may be used as evidence to support other alleged workplace violations by an employer. (Fox Rothchild)
As many of our organizations have been implementing and utilizing remote worker options, we cannot forget the requirements for labor and employment law posters. Local, State and Federal laws have different requirements and definitions for remote workers.
Broad Definition of Remote Workers:
- Works at home
- Does not report to a physical job site
- Is an employee
Other Considerations:
- Independent Contractors: Organization is not required
- Digital Nomads: Organization is not required
- Gig Workers: Depends on payrolling of the individual
- Temporary Workers: Depends on payrolling
- Workers on site at customer’s office: If the customer’s office has posters, more than likely no, but you do want to work with the customer to ensure compliance.
General Posting Requirements:
- Visible
- Conspicuous Location
- Readable
- Not Defaced
- Post Where Employees Report to Work Each Day
Remote Workers with Internet Access:
- Internal website link
- Conspicuously Displayed: Ensure it is easy to find on your intranet portal and not buried in folders.
- Ensure workers are aware of how to access
- Make remote workers aware of their rights
- Can send them their own set of posters
- Electronic posters = best practice
- Still need paper posters at main office and other locations
EEOC: In most cases, electronic posting supplements physical posting but does not itself fulfill the employer’s basic obligation to physically post the required information in its workplaces.
The majority of the agencies, laws and regulations were written prior to the remote work became a popular model for organizations to implement. However, there are a few federal and state laws that have implemented electronic posting language.
- USERRA Notice: May be posted or distributed in other ways.
- FMLA Notice: May be distributed electronically if all other requirements are met.
- EEOC: employers are encouraged to post the electronic notice on their internal websites in a conspicuous location
- Colorado Paid Leave, Whistleblowing & PPE: Provide through electronic communication, or conspicuous posting in the web-based platform
- FFCRA: An employer may also directly mail the required notice to any employees who are not able to access information at the worksite, through email, or online.
The 15 Mandatory Federal Contractor Postings:
- “National Labor Relations Act (NLRA)
- Informs employees of their rights under the National Labor Relations Act to form, join, and support a union and to bargain collectively with their employer
- Must be posted in English and any language common to a significant portion of workers if they are not fluent in English
- Posting requirement does not apply to contracts of less than $100,000
- Enforced by the U.S. Department of Labor – Office of Labor-Management Standards and Office of Federal Contract Compliance Programs
- There has been some confusion recently on whether this is a required poster. The National Labor Relations Board previously required private employers to post a similar notice, but a recent case has put that requirement on hold until further notice. That decision has no impact on federal contractors who are still required to post this poster.
- Walsh-Healey Public Contracts Act/Service Contract Act
- Notifies employees of the minimum wage rate, overtime requirements and safety and health requirements
- Must be posted by federal contractors and subcontractors with contracts in excess of $10,000 for the manufacturing or furnishing of materials, supplies, and equipment to the federal government or federal contractors who provide services to the federal government using service employees whose contract exceeds $2,500
- Enforced by the U.S. Department of Labor – Employment Standards Administration – Wage and Hour Division
- American Recovery and Reinvestment Act (ARRA) Whistleblower Rights
- Informs employees of their whistleblower rights under the American Recovery and Reinvestment Act
- Must be posted by federal contractors who received funds under the ARRA
- Enforced by the Recovery Accountability and Transparency Board
- Department of Defense (DOD) Fraud Hotline
- Informs employees of the Department of Defense Fraud Hotline number for reporting fraud, waste and abuse
- Must be posted by federal contractors who have contracts with the Department of Defense that exceed $5,000,000
- Enforced by the U.S. Department of Defense
- Department of Defense (DOD) Whistleblower Hotline
- Informs employees of their whistleblower rights
- Must be posted by federal contractors who have contracts with the Department of Defense that exceed $5,000,000
- Enforced by the U.S. Department of Defense
- Department of Homeland Security (DHS) Fraud Hotline
- Informs employees of the Department of Homeland Security Hotline number for reporting suspected criminal violations, misconduct and wasteful activities
- Must be posted by federal contractors who have contracts with the Department of Defense that exceed $5,000,000 and if the DOD contract is funded, in whole or in part, by DHS disaster relief funds
- Enforced by the U.S. Department of Homeland Security – Office of the Inspector General
- Notice to Workers with Disabilities/Special Minimum Wage
- Informs employees the conditions under which special minimum wages may be paid
- Must be posted by federal contractors who employ disabled employees paid at a special minimum wage
- Enforced by the U.S. Department of Labor – Employment Standards Administration – Wage and Hour Division
- E-Verify
- Notifies applicant and employees of their rights under the E-Verify program
- Must be posted by federal contractors in English and Spanish and posted near entrance
- Enforced by the U.S. Department of Homeland Security
- Right to Work
- Notifies applicants and employees of their discrimination rights under the E-Verify program
- Must be posted by federal contractors in English and Spanish and posted near entrance
- Enforced by the U.S. Department of Homeland Security 2
- Federal Contractor Minimum Wage
- Informs employees of the federal minimum wage for contractors
- Must be posted by federal contractors and subcontractors that have FLSA-covered workers performing work in connection with a covered Service Contract Act or Davis-Bacon Act contract, as well as those with concessions contracts or contracts offering services to federal employees or the public on federal property
- Enforced by the U.S. Department of Labor – Employment Standards Administration – Wage and Hour Division
- “EEO is the Law” Supplement
- Informs applicants and employees of federal nondiscrimination laws and procedures for filling complaints with the Office of Federal Contract Compliance Programs
- Must be posted by federal contractors and subcontractors with contracts in excess of $10,000
- Enforced by the U.S. Department of Labor – Office of Federal Contract Compliance Programs
- Pay Transparency Policy Statement
- Informs applicants and employees of their pay transparency rights
- Must be posted by federal contractors and subcontractors with contracts in excess of $10,000
- Enforced by the U.S. Department of Labor – Office of Federal Contractor Compliance Programs
- Federal Contractor Paid Sick Leave
- Informs employees of their paid sick leave rights
- Must be posted by federal contractors and subcontractors that have FLSA-covered workers performing work in connection with a covered Service Contract Act or Davis-Bacon Act contract, as well as those with concessions contracts or contracts offering services to federal employees or the public on federal property
- Enforced by the U.S. Department of Labor – Employment Standards Administration
- Davis-Bacon Act
- Notifies employees of prevailing wage requirements and overtime pay under the Davis-Bacon Act
- Must be posted by federal contractors and subcontractors performing on federally funded construction projects in excess of $2,000 for the actual construction, alteration/repair of public buildings or public works
- Enforced by the U.S. Department of Labor – Employment Standards Administration – Wage and Hour Division
- Department of Transportation (DOT) Federal Highway Construction
- Informs employees to report any false statement, false reports or false claims made to the character, quality, quantity, or cost of any work performed on the contract
- Must be posted by federal contractors who work on federally funded highway construction projects
- Enforced by the U.S. Department of Transportation” (Poster Guard)
BURR CONSULTING, LLC 