(Editor’s Note: Today’s article is brought to you by our friends at Poster Guard, a division of ComplyRight and the leading labor law poster service that gets your business up to date with all required federal, state and local labor law postings, and then keeps it that way — for an entire year. Enjoy the read!)
I know we’re seeing a lot of articles today about being in unprecedented times. And frankly, that’s because it’s true. Employees are working from home like never before. And technology tools like Slack and Microsoft Teams are helping remote workers collaborate on projects.
But this new normal raises the question, “How do organizations communicate with employees when it comes to topics like employment law compliance postings?” I know we need to be focused on supporting our employees, along with productivity and the work, but we also need to make sure all employees know their rights as required by federal, state, and local law.
I spoke with Ashley Kaplan, Esquire, senior employment law attorney for ComplyRight about this issue. Ashley leads the expert legal team for Poster Guard® Compliance Protection. On a personal note, I’ve known Ashley for years and I’m thrilled to share her knowledge on the blog.
Please remember that even though today’s post is sponsored, Ashley’s comments shouldn’t be construed as legal advice or as pertaining to any specific factual situations. If you have detailed questions, they should be addressed with your friendly neighborhood labor and employment law attorney.
Ashley, before we talk about the specific posting requirements for remote employees, it might be a good refresher to discuss, in general, the current posting requirements for organizations.
[Kaplan] Sure. All employers must post federal, state, county, and city (if applicable) postings. The mandatory federal posters include:
- Equal Employment Opportunity Commission (EEOC)
- Occupational Safety and Health Act (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)
There is also a new temporary federal poster required for employers with fewer than 500 employees under the Families First Coronavirus Response Act. The new poster summarizes the new emergency paid sick leave law, which remains in effect until December 31, 2020.
In addition, there could be up to 15 additional state-specific posters, depending upon what state you’re in … and up to 10 additional posters for city/county compliance. Oh, and don’t forget there are additional posters for government contractors and certain industries. The topics for these state, county, city, and industry-specific postings include minimum wage, fair employment, paid time off, child labor, unemployment insurance, workers’ compensation, expanded family/medical leave rights, smoking in the workplace, electronic cigarettes, human trafficking, and more.
For HR pros who just read that list of requirements and are saying to themselves, “I have no idea if I have the right posters up!” is there a government site that will tell them everything they need?
[Kaplan] Sadly, no. The postings are issued by multiple different government agencies. Believe it or not, HR professionals have to visit each agency’s site to find out posting requirements. There are 175 different agencies responsible for issuing more than 390 posters at the federal and state level. Add to that the approximately 22,000 local jurisdictions that have the authority to issue their own postings. That’s a lot of follow-up and unfortunately, these agencies aren’t required to coordinate efforts.
So potentially, HR pros have to check several websites to make sure their organizations are in compliance. But do posters really change that often?
[Kaplan] Surprisingly, they do. Our Poster Guard legal team monitors posting changes and has found that on average there are approximately 150 state-specific poster changes per year, with half of them requiring mandatory updates. This number started to increase significantly in 2018 as a result of all the newly enacted state and local employment laws. In 2019, we had a record number of mandatory changes with almost 200 state and local changes. I’m sure that the big changes, like minimum wage increases, most businesses are aware of. But businesses need to pay attention to the small changes too because the government isn’t required to notify businesses when those changes happen. Also, be aware that mandatory posting changes are issued throughout the year, not just in January.
I honestly don’t remember labor law posters ever being so complex. But, let’s shift the conversation to remote workers. With COVID-19 increasing the number of people who are working from home, how do current labor law posting requirements impact remote workers?
[Kaplan] By law, you’re required to provide these mandatory notices to ALL employees. That includes remote workers such as employees who work from home, offsite, on the road, at mall kiosks, in mobile service units, out in the field, and at construction checkpoints. With the shift to remote work in response to the coronavirus pandemic, employers still have to maintain posting compliance as new important posters are coming out during this crisis on issues like emergency paid leave, unemployment and disability benefits. This includes the new federal poster required under the Families First Coronavirus Response Act.
Hopefully, this doesn’t mean that HR needs to send remote workers full-size laminated posters to hang in their spare bedroom/home office?
[Kaplan] No, but it does mean that employees need to receive notices. Although the regulations don’t specify the format — paper or electronic — employers are responsible for communicating the same information to your remote workers as those onsite. The U.S Department of Labor (USDOL) has recently clarified that electronic postings are a compliant solution for remote workers that have computer access. For employees who work on computers as part of their jobs, we recommend electronic delivery of postings, where workers can download, view and acknowledge receipt of all required postings. This satisfies your obligation to communicate their rights, as covered in the mandatory federal, state, and city/county postings.
We might be venturing into new territory here, but what happens if an employee who was working in an office (and saw the postings then) is working from home (where they don’t see the postings now)?
[Kaplan] The law isn’t 100 percent definitive on how frequently a remote employee must access the physical wall posters to be covered. However, FAQs published by the USDOL suggest that, if an employee reports to a company’s physical location at least three to four times a month, the physical postings at the business are adequate. If not, the DOL recommends electronic delivery.
That raises another question about what information should an employee receive. If a company has remote employees who work in different states, which posting requirements should they follow? Those from the state where the company is headquartered or the state where the employee works?
[Kaplan] Unfortunately, it’s not always clear which state laws apply in this instance. Most basic employment rights — such as minimum wage, overtime and safety issues — are governed by the laws where the employee performs the work. However, depending on how your company is structured, your out-of-state employees may be covered by both states’ laws. Because it depends on so many factors, we recommend you provide both sets of state-specific postings to remote workers in this situation.
Last question, there could be people thinking, “Labor law posters aren’t a big deal. No one is going to come inspect us right now. And if they do, we’ll just get a warning.” What’s the penalty for businesses who are not in compliance with this employment law?
[Kaplan] Recently, the amount for federal posting fines increased to more than $35,000 per violation, per location. State and local fines range from $100 to $1000 each. But the real price tag comes in terms of lawsuits or investigations.
An agency could be on-site for a number of reasons, such as an immigration issue, OSHA inspection, wage and hour audit, or EEOC complaint. The first thing they will do is look for up-to-date postings, and non-compliance can negatively impact the outcome of the investigation.
The real danger is with employment litigation. A missing or outdated posting can impact damages and can even ‘toll’ or extend the statute of limitations. And as your readers know, the statute of limitations can often be an employer’s best friend in defending claims.
I would like to extend a HUGE thanks to Ashley for sharing her employment law expertise with us. If you want to learn more about how to make sure your posting requirements are up to date, I hope you’ll check out Poster Guard. Today’s technology makes providing remote workers with their postings easy. They also guarantee their work against government posting fines. Right now, they’re offering a special intranet licensing service to help organizations stay in compliance with their remote workforce during this national emergency.
According to Ashley, you can maintain labor law posting compliance during this time when many employees are working from home by giving employees digital access to the postings via your corporate intranet site or employee web portal. Employees would be able to click a link on your site and view applicable federal, state, and city/county notices.
I realize that our workplace “new normal” is changing all the time. I think that’s one of the reasons that compliance is so important. Whether employees work in the office or remotely, it’s comforting for them to know that the organization is doing the right thing and keeping them informed of their rights.
Image captured by Sharlyn Lauby while exploring the Wynwood Arts District in Miami, FL
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