8 SURPRISING FACTS

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.
38 SURPRISING FACTS ABOUT LABOR LAW POSTING REGULATIONS |
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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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.
8 SURPRISING FACTS ABOUT LABOR LAW POSTING REGULATIONS | 4
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
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
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 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.
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.
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.
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.
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)
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.
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.
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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.
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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.
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.
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.
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.
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.
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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8 SURPRISING FACTS

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