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Ask the Attorney: Answers to Your Workplace Posting Requirements Questions

11/16/2016
Here are legal answers to questions about the 2016 FLSA overtime changes that can help reduce your labor law compliance posting risks.

Ashley Kaplan, Esq., who heads up the expert legal team from Poster Guard® Compliance Protection, answers questions about the risks of non-compliance with labor law postings, from government fines and penalties (which recently increased) to a direct impact on your liability in employee disputes or lawsuits. As it is, the damages in a legal proceeding could be more devastating than the fines themselves, so every employer needs to understand the compliance rules.

Q: What are the fines for not complying with the employer posting requirements? Are they really that bad?

Ashley: I can’t stress enough how important it is to keep your display sites complete and up to date to avoid the risk of rising government fines. In the statutes for the regular federal postings, the government is authorized to fine up to $32,946 per location for posting violations. This could be for missing posters or outdated posters. Plus, this amount recently increased, due to the Civil Penalties Inflation Adjustment Act, which went into effect August 1, 2016. It used to be up to $17,000 per violation, so that’s a pretty significant jump. On a state level, the fines are typically between $100 and $1,000 per violation, with fines for city and county posters falling in the same range. Keep in mind, too, that when it comes to government fines, there are a few states experiencing heightened enforcement lately, including states in the Northeast, New York and New Jersey, as well as an uptick in businesses getting fines in Florida, California and Illinois.

Q: What’s the connection between workplace postings and employee lawsuits? I don’t understand how they’re related.

Ashley: There are a few ways that posting compliance comes into play with employee lawsuits. First, failure to post can extend the “statute of limitations” in an employee dispute or legal proceeding. This can force you to unnecessarily defend old claims that should have been dismissed as time-barred. It also expands potential damages for back pay or lost wages by extending the recovery period and the number of affected plaintiffs. This can significantly inflate damage awards, especially in Fair Labor Standards Act (FLSA) class actions. There’s also the concept of bad faith. Under various legal standards (each law is different), you may incur additional damages for bad faith (or the opposite — have damages reduced or excused for showing good faith). Depending on the law at issue, courts look at a variety of factors to determine bad or good faith, such as whether you had written policies in place, whether you trained your managers on compliance matters, what steps you took to prevent and respond to violations and, yes, whether your postings are compliant. Proper posting compliance is not only a sign of good faith, but it can also be your first line of defense in a lawsuit or agency investigation.

Q: If you have multiple floors in a workplace, does each floor need all
the posters? Or can they be spread out between floors?

Ashley: The law doesn’t specify exactly how many postings should be displayed per building, but that the posters be displayed in “conspicuous locations” that are “readily accessible” to all employees (and in some cases, to applicants). Each federal posting has its own twist on the accessibility requirement, but the intent is the same. It really depends on the logistics of your facilities and whether you have common areas shared by all employees vs. distinct divisions with little or no access to the posting site. If all of your employees have frequent access to a common area or break room, or they all use a common entrance, one posting station may be sufficient. However, if the facility is structured in a way where employees can arrive to work (and leave) without ever coming across the posters, you should maintain additional sites. Consider posting near time clock stations, if applicable, or main entrances on the ground floor to reach as many employees as possible. Don’t forget, too, that four of the six mandatory federal postings must be displayed to prospective employees during the application process.

Q: If our main office is in one state, but we have employees who work out
of their homes in other states, do we need all the posters in the office?
How do we handle employees who work from home?

Ashley: Unfortunately, it’s not always clear which state laws apply to employees when they cross state lines. Most basic employment rights (minimum wage, overtime, safety issues and so on) are governed by the laws where an employee works. Yet, the way a company is structured may create a situation where out out-of-state employees are covered by the state laws of the corporate office as well as where the employees actually perform the work. Because there is no clear law or authority, we recommend that employers provide both sets of posters to remote employees. For the main office, however, you don’t need to display the posters for every state where you employ remote workers.

Q: What is the best way to complete the “blanks,” or form fields,
on posters? Do we have to hand write the information or can we
use other methods, such as a printed label?

Ashley: The only requirement is that the information be communicated to employees. It’s up to you how you do that, whether by handwriting in the information or using labels.

Q: When posters are replaced, do we need to keep the old ones?
If so, for how long?

Ashley: It’s not necessary to keep the old postings. We maintain complete records of your account status, protected locations and poster replacement activity for five years. That way, if you ever need to provide proof of posting compliance in an employee dispute or agency proceeding, you’ll have the information.

Q: I understand certain postings must be displayed so applicants see them when they visit our facility. Our Equal Employment posting isn’t visible to applicants, so what should I do? Will posting items on our website suffice?

Ashley: You’re right — federal employment laws require that some posters be displayed prominently where both job applicants and employees will see them. This is the case with the Equal Employment Opportunity is the Law (EEO), Family and Medical Leave Act (FMLA), Uniformed Services Employment and Reemployments Rights Act (USERRA) and Employee Polygraph Protection Act (EPPA) notices. The general rule is that electronic delivery is not a substitute for full-size posters. Rather, posters must be displayed in a physical format on the walls in conspicuous locations accessible to all applicants. That being said, there are a couple of exceptions. If you only accept applications online, you can provide access to the posting images electronically, because this is the only way applicants are able to view the posters. If you also have walk-ins or conduct pre-hire interviews or testing at your facility, however, you’ll need to display the physical posters, too.