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Photographs are another effective way to show past compliance
Old employment law posters should be saved to help prove past compliance, even though retaining old posters isn't required, management attorneys say. Employers also should take pictures of old posters with time-and-date stamps to have a physical record that they were displayed, according to Jay Hux, an attorney with Fisher Phillips in Chicago.
"From a best-practices perspective, retaining old posters makes sense to help prove past compliance," said Aaron Warshaw, an attorney with Ogletree Deakins in New York City. "For example, in the context of employment litigation, posters can sometimes be relevant evidence to show that employees were informed of their applicable rights."
He recommended that employers retain old posters in paper or electronic format, "as long as they are clearly marked and not accidentally put back into circulation." Save them for the applicable time employees have to sue under the law—the "statute of limitations"—such as three years for federal wage and hour posters, he said.
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"There's no legal requirement that you retain them, but it could come up in an employment litigation matter," said Jason Stanevich, an attorney with Littler in New Haven, Conn. A plaintiff's attorney could claim that the posters were not displayed and that the statute of limitations therefore should be suspended, permitting older claims to be filed. HR should be ready to disprove such claims and show that the posters were displayed in the workplace when employers said they were, he noted.
Hux argued that merely keeping old posters will "not necessarily prove that they were physically posted at a prior date," though it might provide circumstantial evidence. That's why he prefers that employers take pictures of old posters displayed in the workplace with time-and-date stamps.
Tips on Displaying Current Posters
Stanevich said he often sees employment posters being displayed that are several years out of date. "Review them at least once a year and determine if any updates are needed," he recommended.
A common mistake is to display the posters in just one place. Some posters have to be visible to applicants, so it's a good idea to have those at the entrance to the work area, he said. Break rooms and where employees clock in are other good places to display posters.
It's also good to have electronic posters on the company intranet, Hux said. If there are employees who telecommute, "Make sure that the posters are designed to catch the attention of remote employees when they do come into the office," he added. If there is a work location away from company facilities, like a construction site, be sure to put the posters up there as well.
If English is not the first language for a significant number of employees, the posters should use the language of the workers to effectively provide notice of their rights, he noted.
Costs of Failing to Post
The current penalties for first offenses in failing to display federal posters are:
"Employers should note that most penalties increase if they are deemed to be willful, which may occur after a first offense," Warshaw noted.
There also are posters for the Uniformed Services Employment and Reemployment Rights Act, the Employee Polygraph Protection Act, and state laws, "which can be more burdensome on employers," Stanevich said. States have posting requirements on minimum wage, unemployment compensation and paid sick leave, as well as industry-specific posters such as those relating to minimum wage for food-service workers, among others. In Illinois, there is a posting requirement about the Victims' Economic Security and Safety Act, which applies to victims of domestic violence and their family members—a poster requirement that Hux noted would be "easy to overlook." Municipalities have poster requirements as well.
In addition, federal contractors also must display posters on paid sick leave, prevailing wage under the Davis-Bacon Act and the higher minimum wage for federal contractors.
"If an employee complains to an agency that the employer has failed to display required posters, such a complaint could trigger a fuller investigation," Warshaw said. "The failure to update your posters could lead to additional and potentially costly compliance issues."
He cautioned, "Getting the correct posters displayed is important for compliance but also because it shows that the company is focused on getting the details right. If you are in the middle of a wage and hour audit with the U.S. Department of Labor and the investigator points out outdated posters, the agency may assess a penalty but more so it may create a sense that the company is somewhat lackadaisical in its compliance efforts. Conversely, if an employer has the correct posters displayed, then it may create some good will and trust with an investigator."
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