Revised Mandatory Fair Labor Standards Act and Employee Polygraph Protection Act Posters Effective August 1, 2016
August 4, 2016
The Department of Labor has issued revised versions of its “Employee Rights Under the Fair Labor Standards Act – Federal Minimum Wage” and “Employee Rights - Employee Polygraph Protection Act” posters, which all covered employers are required to post. Employers must post the revised versions as of August 1, 2016.
The Fair Labor Standards Act (FLSA) sets standards for minimum wage, overtime pay, child labor, and employer recordkeeping. Every employer with employees who are covered by the Fair Labor Standards Act's minimum wage provisions must post, in a conspicuous location in each establishment, a notice explaining the Act. The revised poster contains new provisions regarding nursing mothers, penalties under the Act, and the misclassification of employees as independent contractors. A copy of the revised FLSA poster can be downloaded from the DOL’s webpage here.
The Employee Polygraph Protection Act (EPPA) generally prohibits private employers from using lie detector tests either for pre-employment screening or during the course of employment. All private employers who do not meet national defense or security exemptions under the EPPA must post the notice. The revised poster does not contain any substantive revisions. A copy of the revised EPPA poster can be downloaded from the DOL’s webpage here.
The DOL issued these revised versions of the posters required under the FLSA and EPPA in July 2016. Many times, federal agencies will issue revised versions of posters, but state that employers may continue to use prior versions, such as the DOL did with regard to the revised FMLA poster that was released in April 2016. (A copy of the revised FMLA poster can be downloaded from the DOL’s webpage here). In this case, however, the DOL states on the webpages for the FLSA and EPPA posters that: “This poster has been revised, and as of August 1, 2016, you must post this revised version.” (Emphasis in original). This mandate is all the more confusing given that the DOL did not issue any news release or other announcement regarding the revised posters.
What Should Employers Do? You should immediately replace your currently-displayed versions of these two posters with the revised versions. While there is no specified monetary penalty for failure to post the FLSA poster, such an omission could be used as evidence of an employer’s intentional noncompliance with the law in a FLSA lawsuit. In particular, it may permit the plaintiff to establish a willful violation of the FLSA, which extends the statute of limitations to bring such a suit from two to three years, and permits doubling of the damages. As for the EPPA, the failure to display the poster may be subject to court action and civil penalties assessed by the Secretary of Labor, and may have similar consequences for EPPA lawsuits.