Thursday, June 9, 2016

“♫ Sign, Sign, Everywhere a Sign ♪”: The EEOC and DOL Sing a New Tune on Required Postings

 

Those old enough  may remember the 1970 one-hit-wonder “Signs” by the rock group Five Man Electric Band, with its chorus of:
Sign, sign, everywhere a sign
Blockin’ out the scenery, breakin’ my mind
Do this, don’t do that, can’t you read the sign?
 In some recent announcements, the Equal Employment Opportunity Commission (“EEOC”) and the U.S. Department of Labor (“DOL”) are calling the tune on employer requirements for posting employee notices of their rights under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), the Genetic Information Nondiscrimination Act (“GINA”), and the Family and Medical Leave Act (“FMLA”)  Unlike the 1970 song, the requirements do not address a protected class of “long haired freaky people”, but do impose financial penalties for noncompliance.
Effective July 5, 2016, the EEOC’s new rule more than doubles the maximum fine against employers for not complying with the posting requirements under Title VII, the ADA and GINA.  Employers will now face a maximum penalty of $525 per violation, up from $210.  The penalty last changed in 2014, when the EEOC increased it from $110 to $220.
Under the law, employers with 15 or more employees are required to post a notice describing their rights under federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability, or genetic information.  These Equal Employment Opportunity (“EEO”) posters are required to be placed in a conspicuous location in the workplace where notices to applicants and employees are customarily posted.  In addition to physically posting the notices, the EEOC encourages employers also to post similar electronic notices on their internal websites in a conspicuous location.  However, such an electronic posting does not fulfill the requirement of an actual physical posting in the workplace.  If employees do not understand or read English, the employer must provide notice in the appropriate language.
Employers frequently get themselves in trouble for perfunctorily putting these posters where they cannot be readily seen by employees, or not posting them at all.  When an EEOC investigator stops by, often the first thing they inquire about is the EEO poster, and being out of compliance is not an auspicious way to begin an EEOC investigation.  Printable posters in English and other languages are available from the EEOC website, although commercially purchased posters also will meet the requirement.
In other posting news, the DOL recently issued a new FMLA poster to replace the previous one required to be displayed by employers.  For the time being, the DOL is not requiring employers to replace their existing posters until further notice.  However, it is important that employers review their existing FMLA policies to make sure the written policies contain all of the information and requirements contained in the new poster, and if not, update them accordingly.  As with the posting requirements for the EEO posters, employers are required to post the FMLA posters in a conspicuous place in the workplace, and can face monetary fines for noncompliance.  For more detailed information, the DOL’s Wage and Hour Division has put out a publication entitled The Employer’s Guide to the Family Medical Leave Act.