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Ask the Attorney: Labor Law Posting Facts That May Be Surprising

11/2/2017
Ashley Kaplan, Esq. addresses labor law posting facts.

Ashley Kaplan, Esq., who heads up the expert legal team for Poster Guard® Compliance Protection, answers questions received from webinar attendees about labor law posting compliance concerns:

Q: How many labor law posters are mandatory and what is the easiest way to obtain all the required posters?

Ashley: For businesses with one or more paid employee, there are up to 21 individual federal and state posters you have to display. The basics include up to six federal posters and up to 15 state-specific posters. This doesn’t include additional postings for city/county compliance, government contractors and certain industries. Unfortunately, there isn’t a one-stop shop for all of these posters from the government. You have to know what agencies to contact and what posters you are looking for, and which ones are mandatory. This is why a labor law poster service makes so much sense. They do all the research to obtain the correct posters for your business, and ideally they should provide automatic replacement posters whenever there are legal updates.

Q: How often do I need to update my labor law posters?

Ashley: You should update your posters any time a mandatory change occurs, because otherwise you’re out of compliance. But that’s easier said than done. The problem is that posters change throughout the year, and often the updates are unpredictable. Though many state and local minimum wage increases take effect on January 1 each year, keep in mind that minimum wage posters only account for a fraction of the required posters, and most of the other posters are updated throughout the calendar year. Also, poster changes don’t always coincide with effective dates of the underlying employment laws. Sometimes a law takes effect on January 1 but the poster is required a few months earlier, or conversely the poster may not be issued by the agency until months after the law takes effect. Unfortunately, the government agencies don’t notify businesses when these changes occur, so you need to monitor the posters for changes and promptly replace out-of-date posters to comply.

Q: Does it really matter where posters are displayed … as long as they’re up somewhere?

Ashley: By law, you must display posters in “conspicuous locations” that are readily accessible to all employees. Break rooms, a common room, a wall near a time clock, a lunchroom or kitchen, all are appropriate because they’re locations where employees congregate. Places like a manager’s office, a gender-specific bathroom or a specific department setting, on the other hand, offer limited visibility. Employers with multiple break rooms or kitchens should consider displaying postings in multiple locations to ensure full employee access. If employees must go out of their way to read the posters, then they aren’t easily accessible to them.

Q: Are there penalties if your labor law posters aren’t up to date?

Ashley: Yes. Failure to post current employment law notices can result in federal government fines up to $33,486, and additional penalties under state and local laws. There can also be severe consequences in employment litigation, where an employer’s failure to post can toll the statute of limitations and affect damage awards based on evidence of “bad faith.”

Q: If you use remote workers, how do you handle labor law posting requirements?

Ashley: The law requires you to provide the notices to all employees, but it doesn’t specify how you must deliver the notices to off-site workers. For remote employees who work on computers, electronic delivery is often the easiest and most efficient way to go. That way, workers can download, view and acknowledge receipt of all required postings. If your company has consultants who work on client sites, it’s important to determine if those sites have up-to-date labor law posters. If they don’t, you could be held legally responsible. Consider alternatives such as electronic delivery or even a binder format for employees who work off-site.

What if a remote worker lives in another state. Which state posters do you provide?

Ashley: The answer depends on a lot of factors, including the state and local laws where your business is headquartered and where the employee lives, the structure of your business, tax issues, the legal relationship with the specific employee, company policies and applicable agreements. The safest practice is to provide posters from both states but at minimum you should provide posters from the state where the employee lives and works.

When are employers obligated to post in Spanish or in another foreign language?

Ashley: In 22 states, certain posters must be posted in Spanish, even if you have no Spanish-speaking employees. If you’re a Poster Guard customer, you don’t need to worry about these requirements. They’re included in the English posting service at no extra cost. Additional laws apply if you have locations with a significant number of Spanish-speaking employees who are not proficient in English. Those locations must post the federal combination poster in English and Spanish. Though not mandatory, it is a best practice to post all of the state posters in English and Spanish in those locations as well.

If your company only accepts job applications online, are you exempt from posting requirements?

Ashley: No. Certain postings must be displayed where employees and applicants can view them. Legally you would need to provide online job applicants with a link to these poster images to be compliant. Physical postings must be displayed for applicants that come into your facility for pre-employment interviews and testing.​