Employers: Required Federal Postings for Job Applicants

All employers are required to display three federal postings visible to job applicants.

Are you missing a key component of posting compliance in your business?

Depending on how your company manages job applicants, you may be missing three required Federal labor law postings that must be accessible to job applicants:

  • Equal Employment Opportunity is the Law
  • Family and Medical Leave Act (FMLA)
  • Employee Polygraph Protection Act (EPPA)

The ubiquitous requirement for “conspicuous location” comes into play here. If your labor law postings are in an area not accessible to job applicants, that location would not satisfy the conspicuous location requirement.

For example, many companies display workplace postings in break rooms or on bulletin boards next to time clocks, or in manager’s offices. But if an applicant never makes it past the reception area into area where posters are displayed, then the postings are not in a conspicuous location for applicants.

How to Meet Federal Requirements for Applicant Postings

  • Determine where applicants typically fill in and/or submit job applications at a physical location.
  • Determine if labor law posters are visible and accessible (in other words, “readable”) for job applicants.
  • If not, display the three required postings.

GovDocs offers a convenient 3-on-1 laminated posters containing the required postings for applicants. Subscribers to this blog can save 20% on all compliance poster purchases, including the GovDocs Federal Applicant poster, using coupon code BLOG20.

Focus on EEO is the Law Posting for Job Applicants

For the EEO is the Law posting, employers are encouraged to post the electronic notice on their web sites in a conspicuous location. However, electronic posting does not fulfill the obligation to physically post the required information.

Additionally, physical versions must be visible and accessible to applicants and employees with disabilities that limit mobility.

E-Verify and Right-to-Work Applicant Posting Requirements

If not, display the three required postings. If your locations participate in the E-Verify program, your participating locations will have to display the E-Verify postings “in a location that is clearly visible to any employees and applicants who will have their employment eligibility verified with E-Verify.” The posting must be displayed in English and Spanish.

Where poster display is not feasible, the employer must provide all applicants with copies of the E-Verify notices in English and Spanish with application materials.

Want Even More Information About Federal Posting Requirements?

Download the free GovDocs Federal Posting Guide to learn more about Federal postings. The Guide describes each Federal posting’s content, for whom it’s required, and the posting requirements. The Federal Posting Guide includes guidance for:

  • Postings Required for All Employers
  • Postings for Applicants
  • Federal Contractor Postings
  • Federal Construction / Transportation Projects
  • Postings by Industry / Worker Classification

NLRB Redefines Joint Employer Status

The NLRB’s new standard for joint-employer status aims at increasing collective bargaining.

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Good news for unions: the National Labor Relations Board (NLRB) veered from its long-standing standard for assessing joint-employer status under the National Labor Relations Act (NLRA) to increase the reach of collective bargaining in companies with decentralized business units or subcontractor arrangements.

In Browning-Ferris Industries v. Teamsters (Case 32–RC–109684) the NLRB upheld a Third Circuit Court ruling that two or more employers are joint employers when they “share or co-determine those matters governing the essential terms and conditions of employment”.

The case involves a recycling company (BFI), a subcontractor who provides workers, and a union eager to organize a group of sorters, screen cleaners, and housekeepers.

BFI contracts with Leadpoint to supply temporary workers. Their contract states that Leadpoint is the sole employer of those temporary workers, but the NLRB decision nullifies that clause – and that alone has far-reaching implications for other employers with similar contractual relationships.

Who’s the Boss? BFI or Leadpoint?

In the daily operations of the BFI plant, Leadpoint maintained its own supervisory and scheduling oversight for the temporary workers. In other words, BFI managers did not have direct control of Leadpoint’s temporary workers in terms of scheduling, hiring/firing, or discipline; however BFI managers influenced day-to-day performance standards and productivity. Additionally, BFI’s contract with Leadpoint stated that Leadpoint’s personnel:

“…have the appropriate qualifications…consistent with all applicable laws and instructions from [BFI], to perform the general duties of the assigned position. BFI also has the right to request that personnel supplied by Leadpoint meet or exceed [BFI’s] own standard selection procedures and tests.

That contract language gave the NLRB the ammunition they needed to sink BFI’s claim that Leadpoint was the sole employer of those temporary employees. These activities taken together, the NLRB determined, qualifies BFI for joint-employer status because the company directly and indirectly influences the terms and conditions of employment.

BFI was able to have Leadpoint hire, fire, and discipline workers through its contract. BFI controlled the actual production infrastructure of the plant (the on/off switch on the production line, for example). That all spells joint-employer status according to the NLRB’s decision.

Who is a Joint-Employer?

In this decision, the NLRB defines joint employers as those with the authority to control the terms of employment and any employers who can exercise that authority – directly or indirectly. If the subcontractor is merely a stooge doing the bidding of the primary company in terms of employment activities, then those parties are considered joint employers. Contract language be damned.

Joint Employers and Centralized Compliance

According to GovDocs Compliance Counsel, Anne Jakala, Esq., employers should monitor closely the outcomes of any appeals to this case and the highly anticipated outcome of the McDonald’s case that will determine the employer status of a parent corporation and its franchises.

“While this specific case dealt with a company and its contractor, the changing of the definition of what is a ‘joint employer’ has many implications for companies that use temporary workers and franchises. If the set of facts in each case meets the newly expanded definition of ‘joint employer’ then the parent company will be considered a ‘joint employer’ with the contractor, temporary staffing agency, or franchisee. This would allow these parent companies to be brought into labor disputes and violations.”

According to Jakala, the new joint-employer status could force employers to consider centralizing compliance programs to protect itself from labor law violations – and that includes workplace postings.

“A company could be held responsible for the posting obligations in those agencies, contractors, or franchisees. This new definition may now expand their labor rights obligations to those workers – including labor law postings.”

GovDocs Helps Joint Employers Centralize Posting Compliance

If you need to centralize compliance across subcontractor or franchise relationships, contact GovDocs for options that fit your operational needs. We provide ongoing posting compliance to North America’s largest employers including large staffing agencies, corporate franchises, and compartmentalized business units. Each has unique needs requiring tailored compliance programs. Contact us to learn more.

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NLRB Halts Mandatory Arbitration Agreements

One employer’s attempt to bake-in arbitration agreements as a condition of employment left a bad taste in the NLRB’s mouth.

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PJ Cheese, Inc. is part of a Papa John’s Pizza franchise (PJ United, Inc.) that employs more than 3,000 employees in Alabama, Louisiana, Texas, Ohio, Tennessee, Illinois, Missouri, Mississippi, and Virginia.

The employer developed a Dispute Resolution Program (DRP. Pronounced just like it’s spelled.) PJ Cheese intended its DRP to settle employment disputes in arbitration, out of court, and definitely out of the crosshairs of the National Labor Relations Board (NLRB).

Oh, the irony.

Instead, PJ Cheese found their Dispute Resolution Program chewed up and spit out. (PJ Cheese, Inc. and James Sullivan).

The language of PJ Cheese’s Dispute Resolution Program explicitly informed applicants and employees that “submission of an application, acceptance of employment or the continuation of employment by an individual shall be deemed to be acceptance of the Dispute Resolution Program.”

And no signature required! How convenient. The NLRB decision referred to this as a “self-executing document”.

PJ Cheese’s DRP – in big, bold capital letters – further expounded:

CONDITION OF YOUR EMPLOYMENT AND IS THE EXCLUSIVE MEANS BY WHICH THOSE PROBLEMS MAY BE RESOLVED.

Ah, now there’s the problem.

NLRB Affirms Administrative Law Court Ruling

Administrative Law Judge William “Wild Bill” Nelson “Rockefeller” Cates found the language of the DRP to quash workers’ ability to pursue class or collective judicial action allowed under Section 7 of the National Labor Relations Act (NLRA). An arbitration policy like PJ Cheese’s DRP also violated the NLRA by causing workers to believe they are prohibited from filing unfair labor practice charges with the NLRB.

The DRP tried to push workers to settle in arbitration claims such as:

  • Wages
  • Breach of any contract
  • Wrongful termination
  • Sexual harassment
  • Discrimination
  • “Whistleblower” claims

PJ Cheese’s DRP flew too close to the sun, and its cheesy wings melted into gooey defeat when the NLRB affirmed with the judge’s original decision. As a result of the decision, PJ Cheese must:

  • Cease and desist from maintaining a mandatory arbitration agreement that bars employees from filing charges with the NLRB.
  • Rescind the unlawful arbitration agreement or revise it in all of its forms to make clear to employees that the arbitration agreement does not constitute a waiver of their right to take joint, class, or collective actions against their employer or file charges with the NLRB.
  • Notify all current and former employees who were required to sign the unlawful arbitration agreement that it has been rescinded or revised and, if revised, provide them a copy of the revised agreement.
  • Post copies of a Notice to Employees that disclose employees’ rights to not be subject to binding arbitration agreements in lieu of the Section 7 and Section 8 rights under the NLRA.

What the NLRB Ruling on Mandatory Arbitration Means for Employers

Long story short: any mandatory arbitration policy that contains provisions unlawfully prohibiting employees from engaging in protected concerted activities and that leads employees reasonably to believe they are prohibited from filing charges with the NLRB will not stand.

Under federal law, employees have the right to act together with other employees for mutual benefit and protection and to file claims with the NLRB. Therefore, employers in the U.S. cannot maintain nor can they enforce a mandatory and binding arbitration agreement that requires employees, as a condition of employment, to waive the right to maintain class or collective actions in all forums, whether in arbitration or in court.

Have your legal team review your employee arbitration process to ensure it doesn’t run afoul of the NLRA.

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Florida Protects Pregnant Workers from Discrimination

Florida is the latest state in the U.S. to amend existing workplace anti-discrimination laws to include pregnant women as a protected class of workers.

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Florida amended Chapter 760* of its Civil Rights statutes to include pregnant workers as a class protected from workplace discrimination.

The statute prohibits employers from terminating, refusing to hire, or discriminate against pregnant workers and other protected classes by paying them less or limiting benefits and other employment opportunities. For example, if you interview a qualified job applicant who happens to be pregnant, you cannot fail to hire her based on her pregnancy.

*Note: The online version of the statute linked above was not updated at the time of this article; however, the amendment is enacted, and the required posting contains the pregnancy revision.

Required Florida Discrimination Posting

Florida revised is Florida Law Prohibits Discrimination posting, which is required for all employers to display. The poster is provided by the Florida Commission on Human Relations in both English and in Spanish on one 8.5″x11″ sheet.

The posting now includes pregnancy as a condition protected from workplace discrimination. The Commission also updated its contact information on the posting.

Employers must display the revised posting immediately. Fortunately, GovDocs provides the revised Florida Discrimination posting as part of the Florida Compliance Posting Package, which includes postings required for all Florida employers:

  • Unemployment Insurance
  • Workers’ Compensation
  • Child Labor Law
  • Discrimination
  • Minimum Wage

Subscribers to GovDocs Labor Law News save an additional 20% on all compliance poster purchases. Use coupon code BLOG20 at check out.

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San Francisco: Update to the Formula Retail Employee Rights Notice

The San Francisco Board of Supervisors passed two ordinances last year known as the Formula Retail Employee Rights Ordinances, or “Retail Workers Bill of Rights.”

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These ordinances address scheduling, hours and retention at retail establishments. The ordinances apply to “formula retail establishments” (or chain stores) with at least 20 retail establishments worldwide and 20 or more employees in San Francisco. The effective date for both ordinances was July 3, 2015.

However, amendments to the ordinances and consequently to the Notice, were passed on July 7, 2015. GovDocs Compliance Research Counsel, Anne Jakala, Esq., noted that

San Francisco has indicated to GovDocs that they are changing this Notice and are unable to provide a timeline for when the correct Notice will be posted. The current Notice online is no longer accurate and is out-of-date. Enforcement of the law will be delayed for 3 months.

GovDocs will continue to monitor for the new and updated Notice. Once released GovDocs will offer an updated posting.

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Credit Checks Bounce in Cook County

Second most populous county in U.S. bans credit background checks in employment screening and job promotion.

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The latest revision amending the Cook County Human Rights Ordinance makes credit background checks illegal in the hiring process or for job promotion consideration.

Leading up to the Commission’s final vote, Commissioner Bridget Gainer said,

“…the protections remove a significant barrier to employment for job seekers affected by foreclosure, unemployment, and medical debt…Credit score does not correlate with the ability to perform a job.”

For employers with locations in Illinois, this may seem like “old news” considering that the State of Illinois prohibited the use of credit background checks in 2010.

The City of Chicago (which is located in Cook County) and Illinois already have prohibitions against the procurement of credit history for use in employment decisions in effect, so

To quote Kelly Uebel, Esq. of employee-screening firm InfoCubic:

“…it will be interesting to see what impact, if any, this county-level law will have on employers. Employers should consult with qualified legal counsel to determine if any changes to their hiring processes are required.”

Cook County Human Rights Ordinance Language Regarding Credit Background Checks

According to the amended ordinance, employers with workers in Cook County cannot:

“…fire or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, classification, grading, discipline, selection for training and apprenticeship, compensation, or other term, condition, or privilege of employment because of the individual’s credit history or credit report; inquire about an employee’s credit history; [or] order or obtain an employee’s credit report from a consumer reporting agency.” (Sec. 42-35, g.1 of the Cook County Human Rights Ordinance)

Exceptions to the ordinance apply for positions requiring bonding, fiduciary management, and certain other conditions.

A special thank-you goes to the Secretary to the Cook County Board of Commissioners for helping the GovDocs Compliance Research team track down the revised ordinance language.

VIDEO: Cook County Board of Commissioners discuss Human Rights Ordinance Revision

Do You Have Business Locations in Cook County?

Cook County, Illinois is the most populous county in Illinois and the second-most populous in the U.S. with more than 5 million residents, nearly half of whom are employed (2,481,900). Businesses with locations in the following cities will need to pay attention to avoid running afoul of the ordinance:

  • Berwyn
  • Blue Island
  • Burbank
  • Calumet City
  • Chicago
  • Chicago Heights
  • Country Club Hills
  • Countryside
  • Des Plaines
  • Elgin
  • Elmhurst
  • Evanston
  • Harvey
  • Hickory Hills
  • Hometown
  • Markham
  • Northlake
  • Oak Forest
  • Palos Heights
  • Palos Hills
  • Park Ridge
  • Prospect Heights
  • Rolling Meadows
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Did You Know? New York City also bans credit checks in employment screening.

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Motion to Dismiss LinkedIn’s FCRA lawsuit Granted

Do reference searches on LinkedIn violate the Fair Credit Reporting Act? A federal judge in California says no.

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Recently, the U.S. District Court for the Northern District of California dismissed a complaint claiming LinkedIn’s ‘Trusted References’ search function violates the Fair Credit Reporting Act (FCRA). The lawsuit, brought forth by four job applicants, alleges that potential employers found references about them via LinkedIn’s reference search tool and they were subsequently denied employment.

LinkedIn’s ‘Trusted References’ search tool, offered to those who pay for an upgraded premium account, provides the job applicant’s employment history and a list of people who currently or previously worked with the job applicant and may be able to provide feedback about them.

Sweet et al vs. LinkedIn Corporation

The complaint alleges

“any potential employer can anonymously dig into the employment history of any LinkedIn member, and make hiring and firing decisions based upon the information they gather, without the knowledge of the member, and without any safeguards in place as to the accuracy of the information that the potential employer has obtained…LinkedIn sold this functionality to prospective employers, marketing the ability to ‘obtain reports containing “Trusted References” for job applicants who are members of LinkedIn.’“

This is where the plaintiffs say the reference tool violates the FCRA. They claim that background information is compiled for evaluating an applicant. By compiling that information, the plaintiffs claim that LinkedIn was acting as a Consumer Reporting Agency under the FCRA. The FCRA defines Consumer Reporting Agency as

“person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties . . . .”

LinkedIn has maintained that they simply

“gather the information about the employment histories of the subjects of the Reference Searches not to make consumer reports but to ‘carry out consumers’ information-sharing objectives.’”

Motion to Dismiss

Ultimately, the court granted LinkedIn’s motion to dismiss by saying

“Reference Searches are not consumer reports because the information contained in these histories came solely from LinkedIn’s transactions or experiences with these same consumers” – not from third parties.

Since the plaintiffs voluntarily provided their names and employment histories to LinkedIn, the court reasoned that

“[a]n entity does not become a [consumer reporting agency] solely because it conveys, with the consumer’s consent, information about the consumer to a third party in order to provide a specific product or service that the consumer has requested.”

The Plaintiffs have until May 19, 2015 to try to restate their claims by an Amended Complaint or attempt to appeal the dismissal.

Fair Credit Reporting Act

The FCRA is a federal law that regulates the collection, dissemination, and use of consumer information, including consumer credit information. It is regulated by the Federal Trade Commission (FTC).

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NYC Credit Check off the Table for Employers

Employers in New York City will not be able to perform consumer credit background checks on job applicants.

New York City amended the City’s Human Rights Law to make it illegal for employers or third-party agencies to request a credit check or to use information from a credit check to assess job applicants. The amendment (0261-2014) takes effect September 3, 2015.

Mayor Bill de Blasio said the amendment will give NYC job applicants “a fair shot”.

“This bill will remove a barrier to employment and ensure that people are judged on their merits and ability, rather than unrelated factors.”

Which Parts of a NYC Applicant’s Credit History Are Off Limits?

The new amendment makes it illegal for employers to request information about applicants’ credit, including:

  • Credit score
  • Credit limit
  • Payment history
  • Number of credit accounts
  • Late or missed payments
  • Charged-off debts
  • Items in collections
  • Prior credit report inquiries
  • Bankruptcies, judgments or liens

Which Jobs Are Excluded from the NYC Credit Check Ban?

Certain types of positions are excluded from the amendment’s provisions.

  • Police officers or persons involved in a position with a law enforcement or investigative function at the department of investigation.
  • Government-appointed positions that involve “a high degree of public trust”.
  • Positions requiring to be bonded under City, state or federal law.
  • Roles requiring security clearance under federal law or the law of any state.
  • Non-clerical positions having regular access to trade secrets, intelligence information or national security information.
  • Positions with signatory authority over third party funds or assets valued at $10,000 or more or that involve a fiduciary responsibility to the employer with the authority to enter financial agreements valued at $10,000 or more on behalf of the employer.
  • Digital security systems positions established to prevent the unauthorized use of the employer’s or client’s networks or databases.

Employers may still request or receive consumer credit history information pursuant to a lawful subpoena, court order or law enforcement investigation under the new amendment.

Which Companies Use Credit Background Checks?

Forty-seven percent of companies perform credit background checks according to a 2012 survey performed by the Society of Human Resources Management (SHRM). Of those, 45 percent of respondents cited theft reduction as the number one reason for using credit background checks, a percentage down from 54 percent in 2010.

The NYC ban on credit background checks and the bans imposed by states like California and Illinois will force employers with locations nationwide to tighten their applicant screening process.

Which States Ban Credit Background Checks for Job Screening?

Currently 11 states in the U.S. ban the use of credit reports for job applicant screening by most employers.

  • California
  • Colorado
  • Connecticut
  • Delaware
  • Hawaii
  • Illinois
  • Maryland
  • Nevada
  • Oregon
  • Vermont
  • Washington

About GovDocs

New York City is one more than 50 cities that GovDocs monitors for labor law changes affecting the posting compliance of large employers. We provide ongoing coverage at the City, State, and Federal level for North America’s largest employers and help them reduce unnecessary spending on labor law postings and logistics.

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San Francisco Releases New Employment Discrimination Posting

The City of San Francisco’s Human Rights Commission released a new posting required for all employers with a business tax registration certificate from the City or that hold contracts with the City.

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The new San Francisco workplace discrimination notice informs employees and independent contractors that employers and persons engaging the services of an independent contractor are prohibited from discriminating against protected persons during recruitment, hiring, training, promotion and termination.

The posting points out that retaliation for filing complaints of discrimination is illegal and the employers must provide reasonable accommodation for persons with disabilities. Additionally, the posting reiterates that City contractors must offer equal benefits to employees with domestic partners.

Which San Francisco Workers are Protected from Employment Discrimination?

Article 33 of the San Francisco Police Code prohibits employers from taking adverse employment action against protected classes of individuals based on:

  • Race / Color / National origin / Place of birth
  • AIDS/HIV
  • Marital status
  • Ancestry
  • Sex
  • Age
  • Religion / Creed
  • Disability
  • Sexual orientation / Gender identity
  • Weight / Height

An employer commits unlawful discrimination by refusing to hire, firing, under-compensating, or making less favorable terms of employment for workers protected by the Article.

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San Francisco City Posters

The GovDocs San Francisco City Poster Package includes postings by required for employers and businesses providing contracted services to the City of San Francisco:

  • San Francisco Minimum Wage (6-Language version)
  • San Francisco Paid Sick Leave (6-Language version)
  • San Francisco No Smoking
  • San Francisco Health Care Security Ordinance (6-Language version)
  • San Francisco Family Friendly Workplace (6-Language version)
  • San Francisco Fair Chance Ordinance posting
  • San Francisco Employment Discrimination is Against the Law

Subscribers to the GovDocs blog can use coupon code BLOG20 to save 20% on the San Francisco City Poster Compliance Package.

City Postings in the U.S.

Currently more than 40 cities require postings for some or all employers, and GovDocs monitors more those and a dozen more cities in the U.S. for new postings and posting updates. City posting coverage is just another reason why North America’s largest employers trust GovDocs for ongoing posting compliance.

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