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Poster Compliance Audit: Is Your Business at Risk? — Q&A Session

Employment law attorney Ashley Kaplan answers employer questions about posting compliance.​​

Watch this free HR webinar on demand.​​​​​


Question: Can mandatory posting be put in a book or binder format that is clearly marked and hanging on the wall? It’s easier to keep updated and is less expensive.

Ashley: It depends. The government agencies have been pretty clear that you can’t use binders as a substitute for wall postings. If you have a facility with walls you still have to post the posters on the wall, but there are some limited exceptions. We’re seeing a lot of clients with non-traditional worksites that don’t have any walls at all. Think of like a kiosk in a mall, or valet stations, services on wheels, blood donation trailers, or “mammograms on wheels,” where there are no walls for the posters. In these cases, you need to consider other options. If all of your employees in those locations have electronic access and intranet access and a mobile or computer device to check electronically, then electronic postings would be an alternative you would have to consider. Also, in that case, a binder would be a compliant substitute. So if you don’t have walls at all, then yes, you can put them in a binder or book format, as long as they’re clearly marked and accessible to the employees. You can either hang it on hooks in the non-traditional workspace, or put it in on a shelf, but make sure it’s visible. Put a note, whether it’s in the employee handbook or training manual, letting the employees know where it is, and have your binder or book fully up to date and complete, so you’re changing them out whenever there are mandatory changes.

Question: What if a government contract requires you to use E-Verify but the state doesn’t allow it?

Ashley: I was a little confused by the question, seeing that the state doesn’t allow it. There are no states right now that have a prohibition on E-Verify. There are certain states that require it, and we went over those in the presentation. There are certain states that require all employers to use E-Verify, but in other states it’s voluntary participation or just for federal contractors. There used to be a state law years ago in Illinois, where the Illinois legislature was trying to prohibit employers from using E-Verify, but for now there are no states that prohibit it. Even if they did, if the government contract requires it, you need to use E-Verify in order to participate in that contract.

Question: Does federal contractor mean that we do business with someone in the government?

Ashley: Generally to be covered by the federal contractor postings, and remember, each one has a different requirement around it, you need to be providing goods or services to the federal government or receiving federal funding from the government.

But, the definition of federal contractor is a little different for each posting law. There are up to 13 posters, and a few of the posters apply almost across the board to all federal contractors if you’re providing goods or services or receiving funding. Typically, the ones that apply are the EEO Is the Law Supplement and Pay Transparency Policy, and the E-Verify and Right-to-Work posters. And there are others that depend on the amount of your contract, like the Walsh-Healy poster that has to be posted if you have a contract for goods of at least $10,000 or for services of at least $2,500. So in some cases it’s tied to the amount of your contract in order to be covered by these requirements. Same for the Federal Contractor Minimum Wage poster. That depends on the amount of the contract or the type of services you’re providing. The NLRA poster depends on the amount of your contract, federal contracts over $100,000, and the rest of them depend on what agency you’re working with, or what agency is providing your funding. The ARRA Whistleblower Rights notice, for example, only applies if you’re receiving funding under the American Recovery and Reinvestment Act. The DHS and DOD posters only apply if you’re receiving funding from those agencies. There is one, the Notice to Workers with Disabilities, where any federal contractor that employs disabled employees under the special minimum wage rate (it’s a special certificate that you can get from the Department of Labor, where you pay a commensurate wage rate for disabled workers), and if you participate in that, you’re considered a federal contractor that’s required to post these. So, it really depends on each poster.

Question: What about our locations that don’t get involved with the contract at all? Do they still have to post federal contractor posters?

Ashley: If you have locations that don’t do any work on these federal contracts, then you’re not required to post in those locations. The law says you have to post for federal contracts at any locations where any work is being performed relating to the contract. But, keep in mind that this is interpreted broadly, and includes any contract-related work, such as payroll or HR, supporting the employees who perform the contract work. Those offices would be required to display the posters. Other support functions include IT, administration, inventory management or fulfillment or areas of your business that help carry out the purpose of the contract.

Question: How do you handle posting for employees who work remotely?

Ashley: I did touch on this in the presentation, but I’ll go ahead and offer some other options. I talked about what I consider the ideal solutions. The most airtight when it comes to compliance, and that would be assuming your employees have Internet access and are regularly communicating with the office via email or Internet, is where I recommend online solutions, preferably that send email notifications directly to the remote workers, provide digital access to all the current posting images, notify the employee when there are mandatory updates, and have some kind of tracking of acknowledgment to show proof or recordkeeping when the employee viewed the posters. That’s the ideal solution.

There are other options when it comes to employees who have Internet access if your company has an intranet site, like an HR Intranet site where you can put a link on your site connecting to current postings but make sure it’s kept up to date and complete. I would recommend taking a few extra steps to make sure it’s properly communicated to your employees. If you don’t have the emails and tracking, you want to work that into your handbook policy, for example, letting employees know these posters are there, and they’re required to look at them on the intranet with specific instructions. You can work it into your training, too. If you do harassment training, or safety training as a refresher, put measures in place to notify employees when there’s an update, and have them acknowledge it in your own way, via email or by paper when they’ve reviewed posters. When it comes to employees who work remotely and don’t have Internet access, mobile devices, or a computer where they can regularly and frequently access digital solutions, then you can consider sending the actual posters or even the binder solutions if they’re in a remote location that doesn’t have walls.

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.

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