Feb 2017 Legal Answers About Federal Posting Requirements
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Ask the Attorney: Answering Your Questions about Federal Posting Fines and Other Requirements

2/3/2017
Legal answers to questions about federal posting requirements, including potential violations and fines for non-compliance.

Ashley Kaplan, Esq., who heads up the expert legal team from Poster Guard® Compliance Protection, answers questions about federal posting requirements, including potential fines related to non-compliance with labor law postings and
the logistics of posting requirements when a business operates from more than
one location, partially online or completely online.

Q: There has been a recent increase in federal fines.
What were the fines per location before the increase?

Ashley: Previously, employers could be fined up to $17,000 per location. However,
the Civil Penalties Inflation Adjustment Act of 2015 recently increased this amount effective August 1, 2016 and again in January 2017. The Act requires federal agencies to adjust penalties for inflation each January. It allowed a one-time “catch-up” adjustment in August and new increases were announced in January 2017.

Q: What are the new penalties for not displaying
federal labor law postings?

Ashley: Penalties for failing to display federal postings first increased on
August 1, 2016. Fines more than doubled at that time. Potential fines went
up to more than $32,000 — $32,946 to be precise.

Here’s a breakdown of the August 2016 fine increases:

  • The Family and Medical Leave Act (FMLA): $110 to $163
  • The Equal Employment Opportunity Commission (EEOC): $210 to $525
  • The Employee Polygraph Protection Act (EPPA): $10,000 to $19,787
  • The Occupational Safety and Health Administration (OSHA): $7,000 to $12,471

Here’s a breakdown of the January 2017 fine increases:

  • The FMLA: $163 to $166
  • The EEOC: $525 to $534
  • The EPPA: $19,787 to $20,111
  • The OSHA: $12,471 to $12,675
  • Potential government posting fines under federal law have now reached $33,486

Q: My state has a higher minimum wage than the federal minimum wage. Am I required to display both posters?

Ashley: Yes. Businesses are required to post both the federal and state minimum
wage posters — even if they are different. Employers must pay employees the higher amount. Some cities even have minimum wages that differ from both state and federal. In those cases, all three postings must be on display. Again, businesses are legally required to pay the highest amount.

Q: Why doesn’t the federal government direct businesses where to
find out about all applicable posting requirements?

Ashley: It’s most likely due to limited resources and a lack of centralization among
the agencies. Each agency is responsible only for its own postings and may not be
aware of new laws or posting changes enforced by other agencies. The result?
Those agencies can’t be relied upon as a source of information regarding other
agencies’ postings. The government does not provide a “one-stop shop” for
mandatory labor law postings. State agencies also issue their own posters.
To achieve federal and state compliance, employers must obtain posters
from up to nine separate agencies, depending on the state.

Q: Which postings does federal law require my business to display
to applicants?

Ashley: The following postings must be displayed where employees and applicants
can view them: EPPA, EEOC, FMLA and the Uniformed Services Employment and Reemployment Rights Act (USERRA) notice. If you’re participating in the E-Verify program, you’re also required to post English and Spanish versions of the E-Verify
and Right To Work notices where they are visible to job applicants.

Q: Can I distribute federal postings to employees
and applicants electronically?

Ashley: With very limited exceptions, electronic postings are not legally acceptable
as a substitute for physical posters. As a general rule, the posters must be physically displayed in conspicuous locations that are readily available and in clear view of applicants and employees. If you accept applications online, you should include
a link to the postings to satisfy applicant-facing posting requirements. Similarly,
if you employ off-site workers, you may satisfy mandatory posting requirements
by providing electronic access.