DOL Workplace Posters: Same Rules, Higher Consequences for Noncompliance

​Most employers are familiar with the long-standing U.S. Department of Labor (DOL) requirement to post summaries of applicable federal labor and employment laws in the workplace. As a general matter, employers must place posters where they are conspicuous to or "clearly seen" by employees, often in the break room or employee cafeteria. Providing workers access to posters ensures they are informed of their rights under various employment and labor laws.

Many employers may feel these requirements are antiquated and have become stagnant over the years. Nevertheless, the pandemic's impact on the remote work environment has sparked some employers to revisit these issues. The DOL's recent increase of maximum fines for noncompliance may also prompt employers to take a closer look.

The DOL recently increased the maximum fine amounts for noncompliance with certain federal notice and posting requirements, to include the following:

• Family and Medical Leave Act (FMLA): $189 (from $178).
  
•  "Job Safety and Health: It's the Law" (Occupational Safety and Health Act): $14,502 (from $13,653).
  
• Employee Polygraph Protection Act (EPPA): $23,011 (from $21,663).
  

The DOL's annual increases in maximum fines illustrates that posting requirements remain on its radar. As such, employers may want to be mindful of more specific posting requirements including the following:

• Notably, the FMLA poster, Equal Employment Opportunity poster, and Employee Polygraph Protection Act poster must be displayed and visible to applicants.
• While the applicable DOL regulations precede the internet's ubiquity in the employment space, according to guidance issued by the DOL, a prominent notice on an employer's website with a link to the applicable posters, in most cases, is a necessary supplement but not a substitute for the physical posting required by certain federal statutes.
  
• Large combination posters are also available for employers that are required to post all posters contained in the DOL's "six-in-one" poster.
• The Occupational Safety and Health Administration's (OSHA) poster and the Executive Order 13496: Notification of Employee Rights Under Federal Labor Laws poster (a required notice for federal contractors and subcontractors) have specific size requirements.

The DOL's website includes links to the applicable posters—which employers may download and print.

Indeed, the DOL's recent increases in maximum fines for noncompliance with federal posting requirements underscore the importance of understanding the nuances of these rules. Employers may want to consider taking a closer look at current practices to see if they are displaying (1) the correct and applicable poster(s), (2) in the proper location(s), (3) to all applicable employees and/or applicants.

The DOL's guidance applies only to the federal notice and posting requirements of its own agencies. Many states and localities have additional notice and posting requirements that employers may be required to satisfy. Employers may also want to be aware of any unique posting requirements specific to other applicable federal or state laws. Indeed, employers may want to check applicable state guidelines for any similar state or local posting requirements.

S. Michael Nail is an attorney with Ogletree Deakins in Greenville, S.C © 2021 Ogletree Deakins. All rights reserved. Reposted with permission.

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