Labor Law Posters – The Perils of Too Few or Too Many
By Rebecca Goldberg, Esq. on April 28, 2014
Posted in Employee Benefits, Employer Policies, Wage & Hour
Every employer in the United States must post at least some labor law notices. Many state and federal employment laws come with such a requirement. While different posters are needed for different situations (for example, based on the employer’s size or industry), no employer is exempt from posting at all. It may be obvious that failing to meet all posting requirements can result in legal liability. What is less obvious is that posting inapplicable notices may also result in legal liability – a danger if your company uses an “all-in-one” labor law poster service.
What’s Wrong with Too Many Posters?
Many employers overlook the risks of posting inapplicable labor law posters. Each year, many employers receive offers to purchase a laminated “all-in-one” poster designed to cover all bases. But, one size rarely fits all when it comes to the law. For example, the Family and Medical Leave Act (FMLA) generally applies only to companies with 50 or more employees. If a 20-employee company posts an FMLA poster, could this statement of employee rights bind the company to provide leave to the extent required by that statute? At least one court has held that in the right factual circumstances, an employee may be entitled to take leave akin to FMLA leave.
Another downside to too many posters is the difficulty in navigating employees’ inquiries about their rights. If an employee points to an FMLA poster and asks where to obtain the paperwork for maternity leave, human resources may have the unenviable task of telling her she is not eligible. This can lead to resentment and poor morale.
A third downside is the potential to invite legal action against the company. The National Labor Relations Board (NLRB) made a failed attempt to require employers to post a notice of employees’ rights under the National Labor Relations Act. Courts ruled against the NLRB’s posting requirement and, eventually, the agency abandoned its efforts. Countless employers have posted – and retained – these notices, even though the rule never went into effect and has been formally abandoned. Among other things, this notice tells employees how to file labor law complaints against their employers. Employers that keep this poster are inviting complaints against themselves!
What’s Wrong with Too Few Posters?
Generally, the stated penalty for failing to post a required labor law poster is a relatively small fine. But, the hidden consequences can be much more costly. In some cases, courts have allowed the employer’s failure to post a labor law poster to “equitably toll” an employee’s rights. This means the time period that starts the clock for the statute of limitations may be delayed until the employee learns of the rights outlined in the applicable poster. If it takes years for an employee to become aware of those rights, the employer may be on the hook for additional years of liability – a consequence that can easily add hundreds of thousands of dollars of liability in certain scenarios, such as class action overtime cases.
Having the Right Posters
What should employers do to get it right? This requires research to determine the required postings based on the state, industry, size, and other factors. Like any other labor and employment law question, the best way to get a reliable answer is to consult competent legal counsel. Fortunately, this is usually a quick and inexpensive inquiry. While some lists of required posters can be found on the websites for state and federal departments of labor, these lists are often incomplete because certain postings may be outside the agency’s purview. If we can be of assistance with this or any other workplace issue, please call us.