Change to Penalties Regarding the Equal Employment Opportunity Commission (EEOC)

Advisory & Consulting, Blog, Small Business Tax, Strategic Accounting

When it comes to violations of the labor law posting requirements, it’s not that these mandatory notices aren’t displayed prominently. It’s that they are not displayed at all, says the Equal Employment Opportunity Commission (EEOC). And that’s a problem. Typically the EEOC is alerted to the issue by employees who are aware of the requirements and contact the authorities. That could lead to an inspection, and an inspection may result in penalties.

The announcement from the EEOC in June explained that they are raising the penalties, “to maintain the remedial impact of civil monetary penalties and promote compliance with the law.” The last time the maximum penalty was raised in 2014, it nearly doubled from $110 to $210. This time, they’ve more than doubled to $525.

Precautionary Exercise
The basic required EEOC notice is known as the “Equal Employment Opportunity is the Law” poster. (Required posters are downloadable from government websites.) The content of that poster should be familiar to employers, but giving it a careful read is a useful precautionary exercise; you should know at least as much as your employees do about actions that constitute unlawful behavior.

For example, the job actions and conditions covered by anti-discrimination laws include not simply hiring, firing, pay and promotion, but job training, classification, referral and unspecified “other aspects of employment.”

Banned discrimination under the Genetic Information Non-discrimination Act of 2008 (GINA) includes acting upon such information as “the manifestations of diseases or disorders in family members (family medical history), and requests for or receipt of genetic services by applicants, employees, or their family members.” Discrimination on religious grounds includes “failing to reasonably accommodate an employee’s religious practices where the accommodation does not impose undue hardship.”

Other posters that most employers must display or face possible penalties include:  the Job Safety and Health Protection poster summarizing key Occupational Safety and Health Administration (OSHA) rules, the “Your Rights Under the Family and Medical Leave Act” (FMLA) poster, and the Employee Polygraph Protection Act Notice.

Key OSHA Messages
Key points in the OSHA poster that you might not have focused on include messages written directly to workers expressing rights to:

  • “Request an OSHA inspection if you [the employee] believe there are unsafe or unhealthy conditions … OSHA will keep your name confidential,”
  • “See any OSHA citations issued to your employer,” and
  • “Request copies of your medical records, tests that measure hazards in the workplace, and the workplace injury and illness log.”

The FMLA poster includes parameters of employee eligibility for FMLA leave. They must:

  • Have worked for you for at least 12 months,
  • Have logged at least 1,250 hours of service in the 12 months before taking leave, and
  • Work at a location where you have at least 50 employees within a 75-mile radius.

The poster highlighting employee rights under the Polygraph Protection Act informs employees that employers “are generally prohibited from requiring or requesting any employee or job applicant to take a lie detector test, and from discharging, disciplining or discriminating against an employee for refusing to take a test or for exercising other rights under the Act.”

The poster explains that the law features several exemptions, including employees “who are reasonably suspected of involvement in a workplace incident (theft embezzlement, etc.) that resulted in economic loss to the employer.” The law also exempts private sector government contractors involved in “national security-related activities,” employers in the pharmaceutical industry, and security service firms, such as guards and armored car drivers.

Federal Contractors
Federal contractors and subcontractors are subject to additional poster requirements, such as the “Employee Rights Under the National Labor Relations Act” notice. Among a myriad of other statements, the poster advises employees that it’s illegal for employers to “question you about your union support or activities in a manner that discourages you from engaging in that activity.”

Several more notices are required to be posted by most employers, yet the laws requiring their posting do not provide for any penalties for failing to do so. These include the:

  • Minimum wage poster, outlining employees’ rights under the Fair Labor Standards Act,
  • Employee Rights for Workers with Disabilities/Special Minimum Wage Poster,
  • Uniformed Services Employment and Reemployment Rights Act, and
  • Notice to Employees Working on Government Contracts.

Don’t overlook your own state’s requirements about possible labor law rights notifications for employees.

New Law
The increased penalties are part of a new law that passed last year. On November 2, 2015, Congress passed the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. It directed federal agencies to adjust civil penalties for inflation each year. Agencies were instructed to determine the last time civil penalties were increased and publish interim final rules to adjust penalties for inflation from that date. The amount of increase can’t exceed 150% of the existing penalty amount.

Poster Imposters
The Federal Trade Commission (FTC) reports that people claiming to be with the government have been calling businesses, hoping to drum up sales of employment posters. They accuse business owners of being in violation of labor law posting requirements, then offer a quick fix. For $200 the fake government agents will sell them the required posters. Of course they fail to mention that the posters in question are available for free from the Occupational Safety and Health Administration (OSHA).

According to the FTC, the scammers focus mostly on newly registered small businesses that might not know the ropes. The callers claim to be with OSHA, or another government agency with an official sounding name, such as the “Occupational Compliance and Safety Administration.” Under that guise, they threaten to shut down the business if posters aren’t purchased immediately.

Does anyone fall for the scheme? The FTC reported on their website that they recently shut down an operation that raked in more than $1.3 million selling posters that could’ve been downloaded free or received by mail, directly from OSHA.

If you are contacted by someone you suspect is a scammer, report the contact at FTC.gov/complaint. If possible include:

  • The date and time of the call,
  • The name of the government agency the imposter used,
  • What they tell you, including the amount of money and the payment method they ask for,
  • Phone number of the caller; although scammers may use technology to create a fake number or spoof a real one, law enforcement agents are sometimes able to track that number to identify the caller, and
  • Any other details from the call.

Your action could result in shutting down a costly scam.

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