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Ask the Attorney: Answering Your Questions about Poster Compliance and Posting Mistakes

Ashley Kaplan, Esq., who heads the expert legal team for Poster Guard® Compliance Protection, answers questions about labor law posting requirements, discusses common posting mistakes, the risks of non-compliance and why it’s important to get it right.

Q: How many mandatory federal postings are required?

  • Equal Employment Opportunity Commission (EEOC)
  • Occupational Safety and Health Administration (OSHA)
  • Family and Medical Leave Act (FMLA)
  • Uniformed Services Employment and Reemployment Rights Act (USERRA)
  • Fair Labor Standards Act (FLSA)
  • Employee Polygraph Protection Act (EPPA)

Q: How many state posters am I required to display?

That depends. You could be required to display up to 15 state-specific posters, depending on your state. Each state is different, and no two states have the same laws. There may be additional mandatory posters for city/county compliance, industry-specific compliance, and federal contractors.

Q: Is there a central government clearinghouse where businesses can get all required posters?

Unfortunately, there isn’t a central clearinghouse or website where businesses can find all the required posters they need. In fact, there are 175 different agencies nationwide responsible for issuing more than 370 federal and state posters.

Managing posting compliance for one location in one state could involve contacting
as many as nine agencies to get as many as 21 posters. These agencies typically do not have “work-share” agreements, so one agency cannot provide all the posters required by state and federal law. Cities and counties issue their own posters as well, so this aspect adds to the complexity of the situation.

Q: Do poster changes occur at a certain time of the year
or are they random?

Poster changes happen all year long, making it even more challenging to stay on top of mandatory updates. There are about 75 mandatory changes to state law posters each year. Posting guidelines and updates can be buried on agency Web pages or even in statutes or local ordinances, so it can be difficult to find posting changes and determine if they are mandatory. When posters change, don’t expect the government to notify you. It’s your responsibility to keep current with the laws.

Q: What is the range of fines for noncompliance?

The government has recently increased federal fines from $17,000 to as high as $33,000 per location for missing or outdated posters. These fines can quickly add
up if your business has multiple locations.

Q: How does enforcement occur?

In most instances, officials find violations when they are on the premises of a business for some other reason such as a Department of Labor complaint about unpaid wages or overtime, an EEOC on-site visit, an immigration-related matter, or an OSHA safety inspection.

Q: Does a business need to post in Spanish if it does not employ any Spanish-speaking workers?

Certain postings must be displayed in Spanish, even if you don’t have any Spanish-speaking employees. Currently, 22 states and Washington, D.C., require certain postings to be posted in English and Spanish for all employers, and many local jurisdictions require foreign-language postings even if all of your employees are proficient in English.

Q: If you are a federal contractor or receive federal funds, do labor law postings apply?

Yes. Federal contractors have additional labor law posting obligations on top of the posting requirements that apply to all employers. There are up to 14 more postings that may apply. Each posting requirement is different. Your fed contractor posting obligations typically depend on the type of government contracts you have and, in some cases, the value of those contracts. These posting requirements for employers change frequently as a result of executive orders and penalties for noncompliance can be severe, including steep fines and possible suspension or cancellation of contracts.

Q: It seems unlikely that a business will be targeted for noncompliance
in a poster sweep. What is the real danger?

Government posting fines may be assessed on a federal, state and local level and can certainly add up, but the most significant threat is when it comes to employee lawsuits. If you don’t have labor law posters in place, an employee could claim he/she did not have notice of their rights.

Posting compliance comes into play in employment litigation in several ways. First, not posting may extend the statute of limitations, giving employees more time to pursue their claims. This, in turn, forces employers to unnecessarily defend old claims that should have been dismissed and expands potential damages for back pay or wages. Additionally, some legal standards impose additional damages for bad faith or reduce damage awards based on a showing of good faith. Posting compliance is a factor that is considered under these standards.

Q: Does the physical location of a labor law poster matter when it is posted or is one location as good as the next?

Labor law posters must be conspicuously displayed in prominent locations frequented by all employees. In other words, you can’t hang them behind a door that
is always open so the poster is blocked from view. Most companies require multiple posting sites to comply, but specific posting sites (and a number of posting displays required) will depend on your business’s size and layout. Some of the federal posters also must be displayed in areas where applicants can view them, as well as online, if you accept applications electronically.

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