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Ask the Attorney: Answering Your Compliance Questions about the Changing Nature of Labor Law Posters

6/15/2017
Ashley Kaplan, Esq. addresses how employers can meet labor law posting requirements and properly notify remote workers in non-traditional work environments.

Ashley Kaplan, Esq., who heads up the expert legal team for Poster Guard® Compliance Protection, answers questions about labor law posting requirements
and how employers can remain compliant in a variety of work environments:

Q: How do you stay abreast of the continual changing posting requirements for employers — and why can’t I monitor the laws myself to stay current?

Ashley: Poster Guard® Compliance Protection has an in-house legal team that continually tracks laws nationwide to determine if any changes require poster updates. Our team of attorneys and researchers actively monitors changes for more than 22,000 cities and counties, in addition to federal and state agencies. It’s a tricky job because none of these agencies has work-share agreements, so there’s no single location where you can get all the federal, state, city and county posters you need
for total compliance. As many as three local changes may occur a week, further complicating an already-complex dynamic. What’s more, government agencies don’t send out alerts announcing mandatory poster changes.

Q: I’m a small business owner and I thought federal and state requirements were all I needed to worry about. Now I’m hearing there may be others. I thought deregulation would mean a decrease in posting requirements,
but it seems to be the opposite.

Ashley: The truth is, posting changes are on the rise — with a lot of cities and counties now requiring businesses to post employee notices in addition to federal and state postings. And if you’re wondering why deregulation seems to be resulting in more posting requirements instead of less, here’s why: History and recent trends show that when federal activity slows, states and cities step in to fill the gaps. We’re already seeing this with minimum wage, paid sick leave, anti-discrimination laws and other legislation designed to protect employees. These changes often lead to more labor law poster requirements — and more complexity — for employers.

Q: My employees speak a mix of English and Spanish. A little more than half of them speak English, so do I still need bilingual posters?

Ashley: It depends. There are 22 states that currently require certain posters to be displayed in Spanish AND English. If your business is in one of these states, at least one mandatory poster must be in both languages, even if ALL your employees are fluent in English. But the posting rules get a little more complicated if a significant number of your employees are Spanish speakers who are NOT proficient in English. In this instance, you must post the federal combination poster in both English and Spanish to comply with FMLA posting requirements. And although the law doesn’t require it (except for in Pennsylvania), if you have a significant number of employees who are not proficient in English, it makes sense to post all other state postings in both languages as a best practice.

Q: Are physical labor law postings necessary in all instances? Can I skip physical postings and send notifications electronically? It seems more cost effective and less cumbersome than having to display laminated posters.

Ashley: IIn general, electronic delivery isn’t considered a substitute for full-size physical wall posters (with only a few exceptions). On a federal level, the government has approved electronic delivery for the FMLA and USERRA postings (only two out of the six mandatory federal posters), but only if you communicate all other employee policies electronically. You also have to make sure your employees have electronic access as part of their jobs. Unfortunately, most state and local agencies still do not allow for electronic posting as a substitute for the physical postings displayed on your walls.

Q: If you have work-from-home employees, is posting compliance necessary? I only have a few remote workers so what’s the point? How could emailing a remote worker an electronic version of a labor law poster make a difference?

Ashley: By law, employers must provide mandatory posters to all their employees, regardless of where they work. The government doesn’t define the delivery method for remote workers, but court cases and recent government publications indicate that electronic delivery for home-based workers is a sensible and compliant alternative. A posting service that pushes out alerts so employees are aware of poster updates — and that also captures employee acknowledgments — is the most prudent choice.

Q: I operate a small medical clinic and am floored by the number of healthcare-related posters I need to display to remain compliant. How can I possibly stay on top of this?

Ashley: You’re right, the healthcare posting requirements are vast. In addition to all the mandatory federal, state and possibly local posters required for all employers, there are up to 15 additional employee-facing posters to display depending on your state and what type of healthcare facility you operate. These include everything from radiation notices and ethics rules to special overtime rules that apply to healthcare workers. To remain compliant and avoid feeling overwhelmed, consider partnering with a poster service provider to make sure you’re covered.

Q: I’m a small business owner who receives most job applications online. Very few people visit my business to apply for work. Am I still required to display the mandatory federal posters in my lobby?

Ashley: Yes, if you accept applications online, you must provide a link to the mandatory federal applicant-facing posters, including the EEOC, FMLA, USERRA
and EPPA postings. If you have an area on-site where you accept walk-ins, conduct applicant interviews, or perform pre-employment testing, you also need to post the physical posters.