Remote Employees: Employement Law Posting Requirements

(Editor’s Note:
Today’s article is brought to you by our friends at Poster Guard, a division of ComplyRight and the
leading labor law poster service that gets your business up to date with all
required federal, state and local labor law postings, and then keeps it that
way — for an entire year. Enjoy the read!)

I know we’re seeing a
lot of articles today about being in unprecedented times. And frankly, that’s
because it’s true. Employees are working from home like never before. And
technology tools like Slack and Microsoft Teams are helping remote workers
collaborate on projects.

But this new normal raises
the question, “How do organizations communicate with employees when it comes to
topics like employment law compliance postings?” I know we need to be focused
on supporting our employees, along with productivity and the work, but we also
need to make sure all employees know their rights as required by federal, state,
and local law.

I spoke with Ashley
Kaplan, Esquire, senior employment law attorney for ComplyRight about this
issue. Ashley leads the expert legal team for Poster
Guard® Compliance Protection. On a personal note, I’ve known Ashley for years
and I’m thrilled to share her knowledge on the blog.

Please
remember that even though today’s post is sponsored, Ashley’s comments
shouldn’t be construed as legal advice or as pertaining to any specific factual
situations. If you have detailed questions, they should be addressed with your
friendly neighborhood labor and employment law attorney.

Ashley, before we talk about the specific posting requirements for
remote employees, it might be a good refresher to discuss, in general, the
current posting requirements for organizations.

[Kaplan] Sure. All employers must
post federal, state, county, and city (if applicable) postings. The mandatory
federal posters include:

Equal Employment Opportunity Commission
(EEOC) Occupational Safety and Health Act
(OSHA)Family and Medical Leave Act (FMLA)Uniformed Services Employment and
Reemployment Rights Act (USERRA)Fair Labor Standards Act (FLSA)Employee Polygraph Protection Act
(EPPA)There is also a new temporary federal
poster required for employers with fewer than 500 employees under the Families
First Coronavirus Response Act.  The
new poster summarizes the new emergency paid sick leave law, which remains in
effect until December 31, 2020.

In addition, there could be up to 15
additional state-specific posters, depending upon what state you’re in … and up
to 10 additional posters for city/county compliance. Oh, and don’t forget there
are additional posters for government contractors and certain industries. The
topics for these state, county, city, and industry-specific postings include minimum
wage, fair employment, paid time off, child labor, unemployment insurance,
workers’ compensation, expanded family/medical leave rights, smoking in the
workplace, electronic cigarettes, human trafficking, and more.

For HR pros who just read that list of
requirements and are saying to themselves, “I have no idea if I have the right
posters up!” is there a government site that will tell them everything they
need?

[Kaplan] Sadly, no.
The postings are issued by multiple different government agencies. Believe it
or not, HR professionals have to visit each agency’s site to find out posting
requirements. There are 175 different agencies responsible for issuing more
than 390 posters at the federal and state level. Add to that the approximately 22,000
local jurisdictions that have the authority to issue their own postings. That’s
a lot of follow-up and unfortunately, these agencies aren’t required to
coordinate efforts.

So potentially, HR pros have to check several
websites to make sure their organizations are in compliance. But do posters
really change that often?

[Kaplan]
Surprisingly, they do. Our Poster Guard
legal team monitors posting changes and has found that on average there are
approximately 150 state-specific poster changes per year, with half of them
requiring mandatory updates. This number started to increase significantly in
2018 as a result of all the newly enacted state and local employment laws.  In 2019, we had a record number of mandatory
changes with almost 200 state and local changes.  I’m sure that the big changes, like minimum
wage increases, most businesses are aware of. But businesses need to pay
attention to the small changes too because the government isn’t required to
notify businesses when those changes happen. Also, be aware that mandatory
posting changes are issued throughout the year, not just in January.

I honestly don’t remember labor law posters ever being
so complex. But, let’s shift the conversation to remote workers. With COVID-19
increasing the number of people who are working from home, how do current labor
law posting requirements impact remote workers?

[Kaplan] By law, you’re required to
provide these mandatory notices to ALL employees. That includes remote workers
such as employees who work from home, offsite, on the road, at mall kiosks, in
mobile service units, out in the field, and at construction checkpoints. With
the shift to remote work in response to the coronavirus pandemic, employers still
have to maintain posting compliance as new important posters are coming out
during this crisis on issues like emergency paid leave, unemployment and
disability benefits. This includes the new federal poster required under the Families
First Coronavirus Response Act. 

Hopefully, this doesn’t mean that HR needs to send remote workers
full-size laminated posters to hang in their spare bedroom/home office?

[Kaplan] No, but it does mean that
employees need to receive notices. Although the regulations don’t specify the
format — paper or electronic — employers are responsible for communicating the
same information to your remote workers as those onsite. The U.S Department of
Labor (USDOL) has recently clarified that electronic postings are a compliant
solution for remote workers that have computer access. For employees who work
on computers as part of their jobs, we recommend electronic
delivery of postings, where workers can download, view and acknowledge receipt
of all required postings. This satisfies your obligation to communicate their
rights, as covered in the mandatory federal, state, and city/county postings. 

We might be
venturing into new territory here, but what happens if an employee who was
working in an office (and saw the postings then) is working from home (where
they don’t see the postings now)?

[Kaplan] The law
isn’t 100 percent definitive on how frequently a remote employee must access
the physical wall posters to be covered. 
However, FAQs published by the USDOL suggest that, if an employee
reports to a company’s physical location at least three to four times a month,
the physical postings at the business are adequate. If not, the DOL recommends
electronic delivery.

That raises another
question about what information should an employee receive. If a company has remote
employees who work in different states, which posting requirements should they follow?
Those from the state where the company is headquartered or the state where the
employee works?

[Kaplan] Unfortunately,
it’s not always clear which state laws apply in this instance. Most basic
employment rights — such as minimum wage, overtime and safety issues —
are governed by the laws where the employee performs the work. However,
depending on how your company is structured, your out-of-state employees may be
covered by both states’ laws. Because
it depends on so many factors, we recommend you provide both sets of
state-specific postings to remote workers in this situation.

Last question, there could be people thinking, “Labor law posters aren’t a big deal. No one is going to come inspect us right now. And if they do, we’ll just get a warning.” What’s the penalty for businesses who are not in compliance with this employment law?

[Kaplan]
Recently, the amount for federal posting fines increased to more than $35,000
per violation, per location. State and local fines range from $100 to $1000
each. But the real price tag comes in terms of lawsuits or investigations.

An agency could
be on-site for a number of reasons, such as an immigration issue, OSHA inspection,
wage and hour audit, or EEOC complaint. The first thing they will do is look
for up-to-date postings, and non-compliance can negatively impact the outcome
of the investigation.

The real danger
is with employment litigation. A missing or outdated posting can impact damages
and can even ‘toll’ or extend the statute of limitations. And as your readers
know, the statute of limitations can often be an employer’s best friend in
defending claims.

I would like to extend a HUGE thanks to Ashley for sharing her employment law expertise with us. If you want to learn more about how to make sure your posting requirements are up to date, I hope you’ll check out Poster Guard. Today’s technology makes providing remote workers with their postings easy. They also guarantee their work against government posting fines. Right now, they’re offering a special intranet licensing service to help organizations stay in compliance with their remote workforce during this national emergency.

According to Ashley, you can maintain labor law posting compliance during this time when many employees are working from home by giving employees digital access to the postings via your corporate intranet site or employee web portal. Employees would be able to click a link on your site and view applicable federal, state, and city/county notices.  

I realize that our workplace “new normal” is changing all the time. I think that’s one of the reasons that compliance is so important. Whether employees work in the office or remotely, it’s comforting for them to know that the organization is doing the right thing and keeping them informed of their rights.

Image captured by Sharlyn Lauby while exploring the Wynwood Arts District in Miami, FL
The post Remote Employees: Employement Law Posting Requirements appeared first on hr bartender.
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Author: hrbartender
Date/time: 31st March 2020, 18:02

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About Christian

Talent Scout, Human Resource Management, Talent Management , Learning & Development, Organisational Development, Change Management, Psychology, Neuropsychology.

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