As of August 1, 2016, employers must post new versions of the federal Fair Labor Standards Act (FLSA) and the Employee Polygraph Protection Act (EPPA) posters. The U.S. Department of Labor (DOL) announced these changes on July 27, 2016.
The DOL updated the posters in part because the Federal Civil Penalties Inflation Adjustment Act of 2015 requires all federal agencies to adjust penalties to account for inflation. The penalty amounts in the previous posters thus were outdated. In addition, the DOL made other changes in these posters.
FLSA and EPPA Posters: What Changed?
The new FLSA poster contains changes to the Enforcement section. It removes the specific penalty amounts for violations of minimum wage, overtime pay and child labor provisions. Instead, it simply provides generally that “civil money penalties may be assessed for violations.” The new section also notes that the DOL has authority to recover liquidated (or double) damages, in addition to back wages for violations for minimum wage or overtime violations.
The new FLSA poster contains other notable changes:
- A new section on the rights of a nursing mother employee. It covers the FLSA’s requirement that an employer give a nursing mother a reasonable break time for one year after the child’s birth to express breast milk. Employers must also provide a suitable place, other than a bathroom, for an employee to express breast milk.
- Adds information warning against incorrectly classifying workers as independent contractors, rather than as employees, under the FLSA. It emphasizes that all employees generally are entitled to the FLSA’s minimum wage and overtime pay protections. (Exceptions are employees who qualify as overtime exempt, while outside sales employees are exempt from minimum wage and overtime.) Individuals correctly classified as independent contractors also are not subject to minimum wage and overtime requirements. They are a narrow category, with employers having the burden of proof, as well as subject to penalties, as well as wage liability, for misclassification.
- The new poster also emphasizes more strongly that posting it is mandatory, moving that notice to the top of the poster.
The EPPA prohibits most private employers from using lie detector tests either for pre-employment screening or during the course of employment. The new EPPA poster no longer specifies the penalty amount of $10,000 for a violation. Rather, it now states that the Secretary of Labor may bring court actions to restrain violations and assess civil penalties against violators.
How to Comply?
The federal posters must be displayed in a prominent and conspicuous location where employees can readily observe them. At minimum, posters must be posted at each location. As a best practice, employers with large facilities should post them at multiple postings in conspicuous locations to ensure they are accessible to all employees.
The EPPA poster must also be displayed where job applicants can readily observe it. As employers rely more heavily on technology and the internet for job postings, compliance issues may arise. The DOL provides some guidance for employers who post job openings online and interview applicants on the phone. The DOL recommends that a prominent notice that “Applicants have rights under Federal Employment Laws” be placed on the job postings website, with a link to the EPPA poster, along with the Family and Medical Leave Act (FMLA) and Equal Employment Opportunity (EEO) posters that also must be displayed for applicants. In addition, posting the notice on a website in this manner is not a substitute for displaying the posters in conspicuous places on the employer’s premises where otherwise required.
Are There Penalties for Failure to Post the FLSA and EPPA Posters?
There are no citations or civil penalties for failure to post the FLSA poster. (Some states impose penalties for not having state law posters.) However, the Secretary of Labor can bring court actions and assess civil penalties for failing to post the EPPA poster. The DOL has not provided guidance on the specific penalty amount for failure to post the EPPA poster, but any violation of the EPPA is subject to a maximum penalty of $19,787 after August 1, 2016.