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Employers: What if You Were Audited? Tips to Avoiding the Risks (and Costs) of Labor Law Posting Noncompliance

Published on 8/30/2018 12:00:00 AM
Labor law posters represent a first line of defense against government fines and potential employee lawsuits for employers. 

In this time of heightened government enforcement and increased employment lawsuits, it’s never been more important to stay on the right side of labor law compliance. As a responsible employer, this includes displaying mandatory federal and state labor law posters – one of the simplest yet often overlooked aspects of compliance.

Federal law requires most employers to post these six employee notices:

U.S. Equal Employment Opportunity Commission (EEOC)
Employee Polygraph Protection Act (EPPA)
Fair Labor Standards Act (FLSA)
Family and Medical Leave Act (FMLA)
Occupational Safety and Health Act (OSHA)
Uniformed Services Employment and Reemployment Rights Act (USERRA)

State laws require multiple employee postings, as well. Depending on the state where your business operates, this could mean up to 15 additional postings per state (for a total of 21 state and federal postings at each posting site). You may also have additional posting obligations if you are in certain cities or counties with their own posting requirements. Even further, some industries (such as healthcare and food service) impose additional posting requirements.

Why would our company be the subject of an audit?

First of all, an audit is usually triggered when a current or former employee issues a complaint with the Department of Labor (DOL) – often an initial step before a disgruntled employee files a lawsuit. The DOL may also target certain industries in a more sweeping investigation, like pinpointing businesses that misclassify employees to avoid extending overtime and other benefits. Same with OSHA violations – the DOL might come knocking at your door if there’s a specific safety complaint – or if your business is part of a broader investigation of industry-specific safety concerns.

How would our company fall under fire for not displaying these labor law postings?

Here’s where your labor law postings come into play. They represent a first line of defense against government fines and potential employee lawsuits. The FMLA, for example, specifies, "Failure to follow the notice requirements … may constitute an interference with, restraint or denial of the exercise of an employee’s FMLA rights." Similarly, OSHA regulations demand that employers display the appropriate "job safety and health" posting in an area frequented by employees. By conspicuously posting all required notices, you’re not only upholding your compliance obligations, but you’re also ensuring that your employees are informed of their workplace rights, as specified under federal and state laws.

What are the risks of labor law posting noncompliance?

Failure to comply with labor law posting requirements could lead to citations and fines during a government inspection or audit. In the statutes for general federal postings, the government is now authorized to fine over $34,000 per location for posting violations. On the state and local level, the government posting fines are typically between $100 and $1,000 per violation. (Each posting carries its own fines because every agency and posting law is different.)

The situation could be more severe, and costly, if an employee files a lawsuit over the violation of his or her workplace rights. In a discrimination or fair pay case, for example, failing to post could erode your "good faith" defense. It could even extend the statute of limitations for time-barred claims, resulting in higher damages and a longer recovery period for back wages.

Depending on the type of investigation, an auditor will most likely review your company’s employment handbook, training materials and employee records.

What steps can we take to comply with labor law posting updates?

To ensure you’re up to date and legally compliant, you should:

Understand the differences between federal and state laws, find out when your state labor law postings changed, and follow the specifics as they pertain to your employees
Conduct a self-review at least twice a year to verify you’re displaying the latest postings
Explore a labor law poster service to receive automatic replacement posters every time a mandatory change occurs

Don’t Leave Your Company at Risk

In any given year, nearly half of all federal and state posting changes are considered mandatory, requiring either new postings or replacement of outdated ones. Staying on top of posting laws can be time-consuming and complex, download the free e-guide, 10 Common Myths About Labor Law Posting Regulations, to learn more about the new and/or posting requirements that may apply to your business.

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Ashley Kaplan, Esq.
Presented by: Ashley Kaplan, Esq.,
Senior Employment Law Attorney
A record number of state and local employment laws were passed in 2018, and many more are pending. With each new law that passes, employers must struggle to understand and comply with ever-increasing obligations.