Workplace Posters: Tricky but Essential

Many employment statutes and regulations contain a provision requiring employers to display posters informing employees of their rights and expectations. It’s an obligation no U.S. employer can escape. But is there a deeper value in what some view as a tedious paper exercise?

Understanding and executing an employer’s obligation to display current workplace posters is “one of the basic things that an HR professional must do well,” said Mary Cheddie, SPHR, a former member of the SHRM board of directors and senior vice president for a publicly-traded company.

While acknowledging that posting requirements can “trip up” an HR executive, she said it’s important to know and understand what posters are required, to ensure that they are posted in each office location, and to be sure that they are up-to-date as regulations change.

To the uninitiated, it’s a daunting task. Given the number of federal, state—and sometimes city and county— posting requirements, the typical employer could easily be required to find, display and maintain a dozen posters.

The top six posters, according to Sonya Carrion, director of the U.S. Department of Labor (DOL) Office of Small and Disadvantaged Business Utilization (OSDBU), are the “Equal Employment Opportunity is the Law” poster, as well as posters that provide information on the Family and Medical Leave Act, Employee Polygraph Protection Act, Fair Labor Standards Act, Occupational Safety and Health Act and the Uniformed Services Employment and Reemployment Rights Act.

The Jewish Home of San Francisco, which has about 1,000 employees in two locations, needs to post around 30 posters, said Chana Anderson, CCP, SPHR-CA, director of human resources. Although state and federal agencies provide a limited number of posters free of charge and offer unlimited printing from web sites, Anderson said she spends around $1,000 a year on laminated “all-in-one” posters that consolidate numerous posters on one sheet. Her source? The California Chamber of Commerce, which she says specializes in keeping up with federal, state and local employment legislation.

Anderson said the all-in-one posters are a great time saver: “If you don’t get it from a centralized location someone is going to have to go out to every single regulatory body’s web site and find the particular poster and download it.”

Instead of hanging 30 8.5-inch-by-11-inch posters by each of its seven time clocks, the Jewish Home displays four large posters organized by topic.

The government doesn’t print all-in-one posters. And although Carrion doesn’t discourage their use, she adds, “We sanction only the posters that we provide to the public at no cost which are developed by our enforcement agency. ...The buyer is at some risk because it is on their end to decipher whether or not [an all-in-one poster] meets all their requirements.”

Anderson said she makes sure that the all-in-one poster “encapsulates every single poster we have to have, and if we don’t, we add the extras.”

The Fine Details

Posters must be placed in a conspicuous area that employees frequent regularly. Often the biggest challenge of meeting posting requirements, Cheddie said, is finding space to display them that won’t detract from the workplace décor. She said that companies such as T.J. Maxx put them in the hallway on the way to the public bathroom.

Anderson said some of the government-issued posters are “so confusing and so convoluted that employees are lost. … We try to make it a little more understandable. We might make the fonts bigger; we may call attention to certain issues like workers’ compensation.”

Cheddie agrees that government-issued posters are often a mess visually. “The posters are boring, they’re not aesthetically appealing, they’re hard to read, the fonts are small, there is so much jammed on to them.” But aesthetics isn’t the issue, asserted Cheddie—fulfilling the requirement of the law is.

But location isn’t everything. Jim Burns, a Chicago-based partner with the employment law firm Reed Smith, said, “I have yet to see in any workplace an employee actually reading them. They kind of fade into the background like wallpaper.”

Employees tend to notice the posters only when they’re changed, said Anderson. “They know there’s something there but they don’t remember [what].”

Motivation to Comply

Although Anderson has never seen a government official spot-checking posters, she noted that an agency auditing a business might ask to see them. For example, if an employee claimed that he was paid less than minimum wage the employer would have to prove that it posted the required information, she said.

That’s why Burns said he always tells employers to make sure that posters are up if they have received word that the Labor Department is going to visit the workplace to review records, because it will be noticed and the government officials will “start thinking if they didn’t comply with that then other things may be amiss.”

Proving the absence or presence of a poster at a particular moment can be challenging, admitted Burns: “My general advice to clients is: When you put up your poster … at the very least you write down somewhere, ‘I posted the poster today, and this is the poster I posted.’ If you do this as a regular practice and someone comes in later claiming there was no poster, you at least have some document that shows you keep regular records whenever you put up a poster.” Fortunately, he said, there rarely are arguments about whether posters were up or down.

Employers typically make two mistakes when it comes to posting requirements, said Anderson. They assume that posters will be good for three or four years, not realizing that regulations—and posters—often change. Or they neglect to notice that there are areas on the poster that have to be filled out specific to each employer, such as pay day notices, “and if they’re not filled out the employer won’t be compliant with that particular piece of regulation,” she explained.

Whenever Cheddie is out at places like Wendy’s and McDonald’s she checks to see if the posters are up-to-date. “If it still says that the minimum wage is $3.75, it’s been a while,” she said wryly.

Small businesses, family businesses and single proprietors are the most vulnerable, according to Anderson, because they’re not always aware of the legislation. But Burns noted that many of the posting requirements don’t apply to small businesses.

And Carrion said it’s more crucial for large businesses to display the proper posters because they don’t have the protection of the Small Business Regulatory Enforcement Fairness Act (SBREFA), a law administered by her office that requires federal agencies to offer compliance assistance and poster fulfillment to the small business community.

Carrion said the federal government works hard to make information accessible. Businesses can determine their poster requirements through the DOL’s “elaws poster advisor” and its National Contact Center. The advisor is an online tool that asks employers a series of questions as it simulates interaction with an employment law expert in order to pinpoint and print out required posters online. The center fulfills poster requests and offers live customer service for those who don’t want to navigate the advisor. Answers to frequently asked questions are also available on the DOL site.

In addition to scanning updates from the California Chamber of Commerce, Anderson said, she hears from regulatory bodies regarding changes and she updates and attends legal seminars throughout the year to stay informed.

Carrion said it’s incumbent upon employers to look at the DOL web site periodically “just to confirm that they’re up-to-date with the most recent information.”

Lora Manternach, PHR, HR manager with Westminster, Colo.-based Staffscapes, an HR outsourcing company that helps employers with poster compliance, said that some state employment law web sites are not easy to maneuver and lack good information.

Yet Cheddie said that no employer can claim that it didn’t post the right posters because they lacked the information: “If you can find Google or Yahoo, you can find these posters.”

Burns said he checked half a dozen web sites and said “it’s pretty easy to figure out what you have to post and to post it.”

Other Issues

One gray area is an employer’s poster obligation when employees telecommute. Because federal workplace posters must be visible to all employees, said Carrion, DOL’s enforcement agencies are studying whether posting the information online would meet requirements.

In the meantime, Manternach recommends mailing a packet of posters to telecommuters: “We’ve seen that having them posted on your intranet isn’t necessarily compliant. …We don’t know if telecommuters will hang them in their office, but at least we’ve complied with the requirement to physically have the posters.”

As for employers with multiple locations, Manternach said, it’s important to post and follow laws in the state that employees are performing the services in, not the state where the corporate offices are located.

Government posters are available in Spanish and English, and some posters are available in Polish, Russian, Vietnamese, Thai, Chinese, Hmong and Korean. Employers should display posters that can be read by those they employ.

Those that operate worldwide, as is the case for Cheddie’s company, might find that there are more poster requirements in the United States but perhaps less workplace regulation than in other countries.

Consequences

American employers might have more things to post, Burns agreed, but such posters serve an important purpose—“so that employees are aware of whatever rights they have,” he explained. “If we tell people what their rights are, those laws are more likely to be honored by employers than those who keep their employees in the dark.”

Burns said that in 30 years of practice he’s never heard of anyone being fined for not posting, probably because most employees comply. In the rare instance when an employer is caught, the agency typically issues them a warning, not a fine. He noted that the Fair Labor Standards Act (FLSA) doesn’t have a defined penalty for failing to post. The Occupational Safety and Health Administration (OSHA) is the one agency he would be leery of “because the penalty for failing to put up the poster is up to $7,000 per violation, which suggests that they take that very seriously.”

Yet Burns emphasized that there are other risks for not posting, such as losing the ability to assert a defense to a claim. There have been courts, for example, that have said that where an employer failed to post a notice of rights for employees, the employer loses the right to hold the employee to the designated time period for filing a claim.

“Although the risk of noncompliance is low, the cost of compliance is lower,” Burns added.

Cheddie said, “Could employers ignore the requirements? Yes. Should they? No.”

Anderson agreed, adding: “Not only is it a regulatory requirement but an ethical requirement to inform our employees about what their rights are and how we function as a business.”

Beth Rogers is a Bethesda, Md.-based freelance writer.

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