We've all seen the posters hanging in breakrooms, reception areas, and hallways--notices proclaiming "Equal Employment Opportunity is the Law" or posters detailing the "Federal Minimum Wage." These notices describing employee rights and hazards of the workplace are nothing new to most employers. In fact, any given employer could be required to display nearly 20 different notices in order to comply with both Michigan and federal law.
Although these notices are commonplace, an employer should be vigilant in making sure that they are not only up-to-date, but that they don't get defaced or covered by other postings. Failure to properly post the correct, up-to-date notices can result not only in stiff fines, but can also have other significant legal consequences.
Possible Monetary Penalties
Most of the postings required by the federal government carry some potential penalty for failure to post. For example, some employers are required to post a "Job Safety and Health Notice" that summarizes the Federal Occupational Safety and Health Act. A covered employer who fails to post this notice could face a fine of up to $7,000. Fines for failure to post other federally required notices pack less of a punch. For example, failure to post the following federally required notices could result in fines of $100 per violation:
Family and Medical Leave Act Notice
Notice to Workers with Disabilities
Equal Employment Opportunity Notice
Failure to post other federally required notices--like the Polygraph Protection Act Notice--do not carry specified penalties, but can result in unspecified fines based on the discretion of the enforcing agency.
In addition to the federally required posters, each state has its own specific posting requirements and corresponding penalties. For example, in Michigan, covered employers who fail to post the required notice summarizing rights and responsibilities under the Michigan Occupational Safety and Health Act ("MiOSHA") could incur a penalty of up to $1,000 per violation. Likewise, if the MiOSHA poster is covered up or posted in an inconspicuous location (such as behind a door), the same penalty would apply.
Aside from the employment law posters and notices, Michigan law also imposes several other posting requirements for employers engaged in specific types of business. For example, there are posting requirements for retailers under the Bottle Deposit Law, Item Pricing Act, Liquor Control Code, and Youth Tobacco Act. The Michigan Food Law contains a particularly complicated set of posting requirements related to hand washing by employees, nonsmoking, anti-choking techniques, raw/undercooked foods, bulk displays of unpackaged food and drink, and food identification. Failure to post these notices and warnings in conspicuous locations could result in a penalty of up to $500 for the first offense and $1,000 for each subsequent offense under the Michigan Food Law.
Apart from monetary fines, employers who fail to post required notices can face even harsher consequences in the courtroom. For example, employees who sue under the Fair Labor Standards Act ("FLSA") must generally do so within two (2) years of the complained-of action, and damages are generally limited to those incurred during the two-year period prior to filing suit. However, this period could be extended if any employer fails to post the required notice. In one recent case, a federal court in Chicago extended the FLSA's statute of limitations because the employer failed to post the required notices. The court held that the employee was unaware of his rights under the FLSA, and therefore was not to blame for his failure to file the lawsuit sooner. Other courts have had similar holdings, extending the statute of limitations in age discrimination and disability cases.
Under the Family and Medical Leave Act ("FMLA"), failure to post the required notice can have similar consequences. Like the FLSA, some federal courts have held that the time for filing suit under the FMLA can be extended if the employer fails to post the required notice. Additionally, at least one federal court has held that an employee working in a shop without an FMLA notice was justified in assuming that he was covered by the FMLA even though he wasn't. Although the employee had not worked the required 1,250 hours in the 12-month period prior to his leave, the court held that the employer was prevented from arguing that the employee was not eligible for leave because it had failed to post the FMLA notice. According to the court, an employer who fails to post the required FMLA notice is "effectively misleading that employee into believing that she is protected by the FMLA."
As you can see, keeping your workplace postings up-to-date can save you in the long run. Although state and federal posting requirements may seem confusing and at times burdensome, taking steps to ensure compliance will protect your organization from significant fines and legal consequences. Luckily, both the federal government and Michigan provide some online support for employers. Below is a listing of some helpful Web sites. A complete listing of the required postings for Michigan employers, along with links to the appropriate governmental sites can be found on the Warner Norcross & Judd Web site at www.wnj.com.
USEFUL WEB SITES
For more information, please contact Dan Lennington at firstname.lastname@example.org or by phone at 616.752.2726.