Column: Labor law posters require more than ‘all-in-one’ fix

BY REBECCA GOLDBERG

Every employer in the U.S. 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 is 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 generally applies only to companies with 50 or more employees. If a 20-employee company posts a Family and Medical Leave Act 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 that prescribed under the act.

Another downside to too many posters is the difficulty in navigating employees”™ inquiries about their rights. If an employee points to a Family and Medical Leave Act 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 made a failed attempt to require employers to post a notice of employees”™ rights under the National Labor Relations Act. Courts ruled against the board”™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 is 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 of the company 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.

Rebecca Goldberg is an associate in the Milford, Conn., office of Berchem, Moses & Devlin P.C., with a recently expanded office in Westport. She focuses her practice on labor and employment matters in state and federal courts and administrative agencies.