Are you posting the required employment notices?
Posting certain notices is required by many federal and state employment laws – a fact that most business owners know, but frequently overlook.
After all, how important are a few posters on the timeclock wall, given the challenge of complying with a seemingly infinite number of other employment regulations?
The answer is that it’s better to be safe than sorry. Although chances are slim that improper posting will cause problems, the possibility does exist, as a large employer in southeastern Wisconsin learned.
Before discussing that case, it should be noted that many employers apparently are not fully aware of their obligations related to the posting of notices. That observation comes from conducting human resources audits at small and medium-sized companies over the past year. Of the more than 25 companies audited, not a single one was in full compliance with its posting requirements. Most were seriously deficient.
The potential liability becomes clear in the case mentioned earlier. In that instance, the lesson pointed to the importance of where posters should be displayed.
The case mentioned above involved an employee who was terminated for excessive absenteeism. Eight months later, he filed a wrongful termination lawsuit, claiming the company violated his rights under the Wisconsin Family and Medical Leave Act (WFMLA).
The law gives employees 30 days to challenge their termination based on violating the WFMLA. However, the 30-day window begins only after the required WFMLA posters are displayed in a location where employees can reasonably expect to see them.
In this case, the WFMLA notice was posted near the Human Resources Department, in a lobby entrance area that employees do not use. Since employees enter the building elsewhere, the posting was not in a location where employees could expect to see it. Thus, the terminated employee was not held to the 30-day limit for filing his lawsuit.
After four years, the company agreed to a settlement that included substantial costs – a $266,000 payment to the former employee, legal fees, plus management time consumed working on the suit. The company also experienced unwanted publicity in a front-page story on the settlement.
It may be presumptuous to assume that this firm would have avoided a problem if it had placed the postings in the proper location. In that case, the employee might have been more likely to file a charge within the required 30 days. However, the company’s exposure was increased by the posting oversight.
A more proactive approach would be to ensure that employees understand their options under WFMLA and any other law that requires posted notices.
For instance, as soon as the employee’s attendance problem arose, the company could have researched whether he was entitled to either state or federal FMLA leave. If it was determined that FMLA was not applicable, the termination decision would have been confirmed and strengthened.
This case deals with only one of the 17 postings that an employer may be legally responsible for displaying.
Posting in the proper location will greatly reduce your liability. Posting the latest revision of each notice is a less serious violation, but one that is much more difficult to ensure.
Unfortunately, the agencies responsible for issuing notices do not automatically send employers new posters when changes are made.
In response, some employers turn to vendors who supply regular posting updates for a fee that can sometimes be rather high. Certain vendors offer an “all-in-one” poster, but there’s a danger in using it because not all of the items apply to all employers.
For example, the FMLA has different implications for companies with 1 to 24 employees, companies with 25 to 49 employees, and companies with 50 or more employees. A vendor with a “one-rule-fits-all” mentality could produce a poster with items that might not fit your company.
Such a posting could mislead your employees and prompt them to file inappropriate claims, resulting in a cost of time, money and damaged employee relations.
If your company has an HR professional on staff, that person is likely to have the contacts and resources needed to keep abreast of posting requirements and revisions to specific posters.
For those who don’t have an HR staff, the State of Wisconsin Department of Workforce Development offers an automated phone service (453-7705) that provides information on which state posters employers are required to display, as well as the latest revision date of each poster.
The DWD also offers a brochure (“Workplace Posters FAQ Frequently Asked Questions”) that provides this information, as well as federal posting information.
While this sounds like an ideal solution for employers who are uncertain about their posting obligations, caution is recommended in utilizing these services – at least in the near future.
A recent call to the automated system found the information to be significantly out of date. And the most recent DWD brochure was found to be equally outdated. When the system is updated – the DWD is working on it – employers should have an efficient and accurate method for ensuring compliance.
Jim Rittgers, SPHR, is the director of human resources for EPIC Staff Management. Comments and questions are welcomed via e-mail to firstname.lastname@example.org.
Do you know if your company has taken the appropriate steps to avoid serious problems related to legally required postings? It has, if you can answer “yes” to the following questions.
4 Are you aware which of the 17 federal and state postings apply to your company?
4 Are all of the postings that apply to your company
displayed in your facility?
4 Are the required postings displayed where employees are certain to see them?
4 Are all of your legally required postings the most up-to-date revision?
4 Is someone in your organization responsible for
periodically ensuring that legally required postings have not been removed, damaged or obscured?
Small Business Times, Milwaukee, June 1998
Are you posting the required employment notices?