Ask The Lawyer By: Daniel A. Gwinn, Esq – Too Many Posters, Not Enough Wall
TOO MANY POSTERS, NOT ENOUGH WALL
QUESTION: I own a small business. Although everyone is teleworking right now, because of the pandemic, we plan to move into a new, smaller space next month. As I was checking the suite out, I noticed that we will not have a lot of public wall space for hanging the rights-in-the-workplace posters required by law. Since we will continue to telecommute at least part of the time once our physical office reopens, can I get away with emailing everyone the information contained on the posters and skip trying to get them to fit in the new digs?
ANSWER: According to the Wages and Hours Division (WHD) of the Department of Labor, which enforces the various poster requirements, the answer to your question is “No.” While you can email your employees as a supplement to the required posters, if your employees come into work at least part of the time, or you interview and hire at a physical location, you need to put up a physical poster. And, even if you decide to provide digital access to the information displayed on the poster as a supplement for employees who telework, the WHD asks that the information be easily accessible to employees on a continuous basis. It’s not enough to shoot your workers an email with the information. The online information must also be easy to find – on a dedicated website or intranet, with an interactive Table of Contents, for instance. Burying notices in 2,000 pages of undifferentiated policies or procedures would not do the trick.
Your reluctance to provide limited wall space to an increasing number of required posters is understandable. While the posters required vary based on the size of your business, the type of business you engage in, whether you do any federal contract work, and whether your employees belong to a union, among other factors, most business are required to put up at least four: Family and Medical Leave (FMLA) rights, Equal Employment Opportunity (EEO), notices about wages and overtime under the Fair Labor Standards Act and (in Michigan) information on the Whistleblowers’ Protection Act. Until December, covered employers were also required to put up a notice of expanded leave and sick pay requirements under the Families First Coronavirus Response Act.
And, just as you can’t satisfy the WHD by making digital versions of the information available in a manner that is difficult to access, you can’t satisfy the posting requirements by putting the poster in a location where it will be difficult to read (above a bookcase, for instance), unlikely to be seen (the broom closet), or not available to be seen by everyone (the men’s bathroom). Some posters, like those for the FMLA and the EEO, as well as the Employee Polygraph Protection Act poster, must be displayed where they can be seen by job applicants.
While you are on the hook to put up the posters, you might want to make sure you are not putting up more posters than required for your business. The Department of Labor offers a handy on-line tool, the FirstStep Poster Advisor, which takes you through a series of questions to determine which posters you must display. The address for the site is https://webapps.dol.gov/elaws/posters.htm.
One last note, the posters do not have to be put up in one location. As long as they are easily visible to all employees (and applicants), they could be displayed on walls throughout your business.
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ASK THE LAWYER
By: Daniel A. Gwinn, Esq
.Attorney and Counselor at Law
GWINN LEGAL PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3310 facsimile