From the Los Angeles
Daily Journal
"Necessary Notices--
Law firms must comply with the myriad federal and California posting requirements.
To do so is not expensive and is much better than paying penalties for
noncompliance"
by Richard S. Rosenberg
Many of the federal and state labor laws applicable to
law firms require the firm to post compliance posters where they can be
readily seen by employees. These posters explain the employees' legal
rights. The failure to follow these requirements can result in a monetary
fine and could be deemed evidence of the employer's failure to take compliance
requirements seriously. As an initial compliance step, the firm's administrator
should review the firm's postings to be sure that these requirements are
met.
Here is a list of the required federal and state postings.
These postings may be obtained directly from the appropriate government
agency or commercially through numerous Human Resources publishers. Unless
otherwise noted, the poster must be displayed in a conspicuous place (e.g.,
an employee lunch room, break area, or area where employees would regularly
check in). They do not, however, need to be anywhere within client view
unless there is no other alternative.
FEDERAL POSTING REQUIREMENTS
1. EQUAL EMPLOYMENT OPPORTUNITY POSTER
Incorporates postings required by Title VII of the Civil
Rights Act of 1964, the Age Discrimination in Employment Act of 1967,
the Equal Pay Act, and the Americans With Disabilities Act of 1990. The
Equal Pay Act applies to all employers engaged in interstate commerce.
The Americans With Disabilities Act and the Civil Rights Act of 1964 apply
to employers engaged in interstate commerce that employ 15 or more employees.
The Age Discrimination in Employment Act applies to employers engaged
in interstate commerce that employ 20 or more employees.
2. FAMILY MEDICAL LEAVE POSTER
Incorporates posting requirements of the Family and Medical
Leave Act ("FMLA"), 29 U.S.C. ?2619. The FMLA applies to employers with
50 or more employees. Section 825.300 of the Department of Labor regulations
allows employers to post photocopies of the Wage and Hour Division's poster,
provided that the reproduction of the notice must be no smaller than 8
? by 11 inches and contain fully legible text. 29 CFR ?825.300.
Furthermore, if the firm maintains an employee handbook or any other written
communication discussing wages and benefits, the Handbook must contain
information concerning FMLA entitlements and employee obligations under
the FMLA. 29 CFR ?825.301(a). Further, the firm must provide written guidance
to employees when the employee requests leave concerning the following
eight matters pertaining to the FMLA:
?that the leave will be counted against their annual
FMLA leave entitlement;
?any requirements for the employee to furnish medical
certification of a serious health condition and the consequences of failing
to do so;
?the employee's right to substitute paid leave
and whether the employer will require the substitution of paid leave,
the conditions related to any substitution;
?any requirement for the employee to make any premium
payments to maintain health benefits and the arrangement for making such
payments;
?any requirement for the employee to present a
fitness-for-duty certificate to be restored to employment;
?their status as a key employee and the potential
consequence that restoration may be denied following FMLA leave explaining
the conditions required for such denial;
?the employee's right to restoration to the same
or an equivalent job upon return from leave; and
?the employee's potential liability for payment
of health insurance premiums paid by the employer during the employee's
unpaid FMLA leave if the employee fails to return to work after taking
FMLA leave. 29 CFR ?825.301(a)(2) and (b)(1).
3. MINIMUM WAGE AND OVERTIME POSTER
Incorporates posting requirements contained in the Fair
Labor Standards Act. The Fair Labor Standards Act applies to employers
that engage in interstate commerce and have gross revenues in excess of
$500,000 per year. 29 CFR ?516.4.
4. POLYGRAPH POSTER
Incorporates posting requirements by the Polygraph Protection
Act. 29 U.S.C. ?2003. The Polygraph Protection Act, which applies to all
employers engaged in or affecting commerce or in the production of goods
for commerce, outlaws polygraph exams under most circumstances.
5. ERISA PLAN "NOTICE TO INTERESTED PARTIES"
When employers apply to IRS for initial approval of an employee
pension benefit plan that is subject to the Employee Retirement Income
Security Act of 1974 (ERISA), they must provide a "Notice to Interested
Parties" to all present employees eligible to participate in the plan.
Rev. Proc. 80-30, 1980-1 Cum. Bull 685, 697-98.
6. SERVICE CONTRACT ACT
Firms that enter into a contract or subcontract with the
U.S. government in excess of $2,500 for the purpose of furnishing services,
must post a scale of wages and fringe benefits and safe working conditions.
29 CFR ??4.6(e), 4.184.
a) Affirmative Action Notice Policy
Firms that are government contractors or subcontractors
must post notice to applicants and employees in a form provided by the
contracting officer. Exec. Order No. 11246; ?202; 41 CFR ?60-1.42.
b) Vietnam Era Veterans and Disabled
Firms that are government contractors and sub-contractors
furnishing services for $10,000 or more must post this EEO statement.
41 CFR ??60-250.44(a), 60-741.4(d); 61 Fed. Reg. 50105.
c) Drug-Free Workplace Act
Firms that are awarded a government contract for services
greater than $100,000 or receive a grant for any amount from any federal
agency must post a notice stating that the unlawful manufacturing, distribution,
dispersion, or use of a controlled substance is prohibited in the workplace.
The requirements are set forth in 41 U.S.C. ?? 701 and 702.
CALIFORNIA POSTING REQUIREMENTS
1. CALIFORNIA EMPLOYMENT DISCRIMINATION POSTER
Incorporates posting requirements by regulations promulgated
by the Fair Employment and Housing Commission to implement the California
Fair Employment and Housing Act, 2 Cal. Code Regs ?7287(d).
2. CALIFORNIA HARASSMENT POSTER
Incorporates posting requirements of recent sex harassment
amendments to the California Fair Employment and Housing Act. Gov't Code
?12950.
3. CALIFORNIA FAMILY RIGHTS ACT
Incorporates posting requirements set forth in regulations
promulgated by the Fair Employment and Housing Commission to implement
the California Family Right Act. This notice may be combined with the
California Pregnancy Disability Leave notice. 2 Cal. Code Reg. ??7297.9
and 7291.16.
4. CALIFORNIA INDUSTRIAL WELFARE COMMISSION
WAGE ORDER
This poster covers a variety of topics pertaining to wages,
overtime and work conditions at the firm. This poster is required by California
Labor Code ?1183. Law firms must post Wage Order No. 4.
5. OCCUPATIONAL SAFETY AND HEALTH PROTECTION
POSTER
Incorporates posting requirements by Cal-OSHA and the U.S.
Occupational Safety and Health Act. Labor Code Section ??6408 and 6328.
Because Cal-OSHA is an OSHA-approved state plan, California employers
look to the Cal-OSHA provisions found in the California Labor Code and
corresponding regulations to ascertain posting duties. There is a myriad
of posting requirements under Cal-OSHA. Many of these requirements are
industry-specific or are applicable only to building owners (e.g.,
smoking prohibition, - Labor Code Section 6404.5 requires a sign to be
posted at building entrances stating "No Smoking"; Fire Protection Plan,
8 Cal. Code Regs. Section 3221 requires posting location of exits and
extinguishers; and Notice of Possible Exposure to Chemicals Known to the
State to Cause Cancer, Proposition 65 requires notice posting of known
toxic hazards, etc.).
6. PAYDAY NOTICE
Pursuant to Labor Code ?207, law firms of every size must
post a notice showing its regular pay days plus the time and place of
payment. No particular form is required. The firm may opt to place this
notice in its employee handbook.
7. DISABILITY AND UNEMPLOYMENT INSURANCE NOTICE
Law firms of every size must post this notice incorporating
information on state-sponsored unemployment and disability insurance programs.
Unemployment Insurance Code ??1098 and 2706.
8. WORKERS COMPENSATION NOTICE
Applies to law firms of all sizes. This notice typically
is provided by the firm's Workers' Compensation insurance carrier. Labor
Code ?3550 and 8 Cal. Code Regs ?9881.
The California Workers' Compensation Act also requires
the firm to notify employees in writing of their right to choose their
own physician in the event of a job related injury. Title 8 ?9782 of the
California Administrative Code provides as follows:
Notice to Employee of Right to Choose Physician. Every
employer shall advise his employees in writing of their right to request
a change of treating physical if the original treating physician is selected
initially by the employer; to be treated by a physician of his or her
own choice thirty (30) days after reporting an injury; and to direct initial
medical treatment, other than appropriate emergency of first aid treatment,
by designating a personal physician and notifying the employer in writing
of his or her choice prior to the injury. This duty may be satisfied by
incorporating such advice in a notice, if posted in a conspicuous manner
at all places of employment, or by any other regularly used means of communicating
information to employees.
If the firm does not wish to post a separate notice, the
firm may include the above notice in its employee handbook.
9. CALIFORNIA DRUG-FREE WORKPLACE ACT OF 1990
Applies to firms that are awarded any state service contract
or grant from any state agency. Firms must provide a notice that is identical
to the federal Drug-Free Workplace Act. Gov't Code ??8355 and 8356.
10. NOTICE OF RIGHT TO TAKE TIME
OFF TO VOTE
Law firms must periodically post a voting time notice pursuant
to Elections Code ?14351. At least 10 days before any statewide election,
the firm is required to post a notice summarizing the statutory provisions
allowing employees to take time off to vote. (An employee is entitled
to take up to two hours time off to vote if he or she does not have sufficient
time to vote outside of working hours. Time off to vote must be with pay
and must be taken at the beginning or end of the employee's regular work
day.) Elections C. ?14350.
11. SEX HARASSMENT PAMPHLET
Government Code Section 12950 (the California Fair
Employment and Housing Act) requires employers to distribute written information
on sexual harassment to all employees at the time of hire. Employers either
must use the pamphlet developed by the state Department of Fair Employment
and Housing ("DFEH") entitled "Sexual Harassment Is Forbidden By Law"
or equivalent employer-generated information. Under the statute, any employer-developed
information must define sexual harassment, give examples of sexual harassment,
indicate that sexual harassment is illegal, and explain the complaint
procedures and legal remedies available to victims.
All of these posters may be obtained by calling
or writing the agency responsible for the enforcement of the particular
regulation or through a commercial supplier. The agencies that enforce
these laws may levy fines and penalties against firms that do not post
the required notices. For example, the failure to post notices required
by the Department of Industrial Relations is a misdemeanor punishable
by a fine of not less than $100 or by imprisonment for not less than 30
days or both. Walk into the employee break room and make sure that your
law firm has all of these postings. The cost is minimal and far outweighs
the consequences of non-compliance.
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