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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

California Releases New CFRA Posting – But Don’t Fall in Love

California released a new Joint Notice for Family Care and Medical Leave (CFRA Leave) and Pregnancy Disability Leave posting that overlaps content on the current “Notice B” – and then they promptly indicated that two entirely different postings will be released to replace them both.

If you’re a labor law posting geek like we are at GovDocs, you like to give little pet names to the workplace compliance postings – like “Nobby” for the California Notice B of Family Care and Medical Leave and Pregnancy Disability Leave.

But poor little Nobby isn’t long for this world, and neither is the new posting released by California, the CFRA posting (aka “He Who Must Not Be Named”). So don’t get attached to this cute little fella.

The Fair Employment and Housing Council (FEHC) will hammer out discrepancies between Notice B and the new CFRA posting and, eventually, will release two separate postings, one for Family Care and Medical Leave and one for Pregnancy Disability Leave. According to the CFRA Amendments:

“The right to take a CFRA leave under Government Code section 12945.2 is separate and distinct from the right to take a pregnancy disability leave under Government Code section 12945.” (§ 11093 a)

Effective July 1, 2015, the CFRA notice is required for employers, but you’re exempt from penalty if you display at least Notice B with the 11/2012 revision date (good old Nobby!).

The current California “Notice B” and CFRA postings are a joint notice of both:

  • California Family Rights Act (CFRA) leave
  • Pregnancy Disability Leave under the Fair Employment and Housing Act (FEHA)

Why Did California Release a New Joint Posting?

According to GovDocs Compliance Research Counsel, Anne Jakala, Esq., the new joint CFRA posting was released to include the new changes to the CFRA regulations. However, the Fair Employment and Housing Department indicated on its website that the Council will be releasing a rulemaking action to discontinue the joint notice, eventually resulting in one separate notice for CFRA and one separate for Pregnancy Disability Leave.

“In effect, the new Joint Notice will be required to be replaced again when the separate notices are released. In the meantime, the Department has indicated that an employer will not be penalized if either the old Notice B or the new CFRA posting is displayed. Any employer who continues to use the old Notice B will not be penalized.” – Anne Jakala, Esq.

Once the California FEHC releases the separate postings for both CFRA and Pregnancy Disability Leave, GovDocs will retire the current joint notices and support the two new separate notices.

CFRA Changes Effective July 1, 2015

The Fair Employment and Housing Act (FEHA) contains the California Family Rights Act (CFRA). Beginning July 1, 2015, new amendments to the CFRA go into effect. The amendments clarify certain CFRA provisions and bring the regulations up to date with current statues and case law. Specifically, the amendments are to more align the CFRA with the Federal FMLA.

CFRA Posting Requirements and Intranet Posting

The CFRA Amendments require every employer covered by the CFRA to:

  • Display “in conspicuous places where employees are employed” the notice.
  • Include a description of CFRA leave in the next edition of any employee handbook that describes other kinds of personal or disability leaves available to employees.
  • Provide the content in text large enough to be easily read.
  • Translate the notice into the language or languages spoken by groups of employees in any language that is spoken by at least 10 percent of the company’s workforce.

Employers are also encouraged to give a copy of the notice to each current and new employee, but you may provide the posting electronically as long as employees have access to the posting in the digital equivalent of a “conspicuous location”.

A company intranet, for example, would work well for employees who have computer access as a routine part of their jobs. Many employers are using the GovDocs Intranet Poster Program to feed the latest Federal, State, and City postings directly into company intranets, and it works well – especially for remote workers/telecommuters.

Otherwise, print and display the CFRA, but just don’t fall in love with it or give it a name. That would make it that much more difficult to say good-bye when the new postings are released.

DOL Same-Sex Spouses FMLA Leave Stalled in Four States

Thousands of U.S. workers in same-sex marriages will not be protected by the FMLA if they take time off to care for their same-sex spouse.

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One day before the Department of Labor’s (DOL) final rule would have revised the Family Medical Leave Act (FMLA) definition of ‘spouse’ to include same-sex partners, a Federal District Court granted a preliminary injunction  halting the revised definition.

What is a Preliminary Injunction?
A preliminary injunction is: “A court order made in the early stages of a lawsuit or petition which prohibits the parties from doing an act in order to preserve the status quo until a pending ruling or outcome…The purpose of a preliminary injunction is to keep the parties, while the suit is pending, as much as possible in the respective positions they occupied when the suit began and to preserve the court’s ability to render a meaningful decision after a trial on the merits.”

Four states that uphold ‘Defense of Marriage’ legislation (Texas, Arkansas, Louisiana and Nebraska) joined the case against the DOL, and they claimed that the DOL’s proposed rule was:

“…inconsistent with Congress’ clear and unambiguous intention and this action exceeds the authority Congress delegated to the agency.”

The Court’s order found that the DOL’s rule might not survive a challenge based on the Federal Full Faith and Credit Statute (28 U.S.C.A. § 1738C), which says no state is required to abide by any federal action that would force a state to recognize a relationship between two people of the same sex as a marriage.

Revision of ‘Spouse’ under the FMLA

In 2013, the Supreme Court struck down Section 3 of the Defense of Marriage Act in United States v. Windsor. Soon after the DOL changed their definition of spouse under the FMLA, which allowed eligible employees to care for their same-sex spouse under the FMLA – if the employee resided in a state that recognizes same-sex marriage. Because the DOL rule was limited only to states that recognized same-sex marriage, states such as Texas were exempt from the FMLA rule change.

In the Final Rule, however, that was halted by the court injunction, the DOL proposed to remove that geographic limitation by replacing the phrase “state of residence” to “state of celebration”, thus forcing all states to allow FMLA leave to married same-sex workers.

What is the Family Medical Leave Act (FMLA)?
Under the U.S. Department of Labor, the FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.

State of Texas v. United States of America and the Department of Labor

Texas does not recognize same-sex marriage and filed its lawsuit arguing that requiring states to follow the new FMLA rule would violate Section 2 of Defense of Marriage Act. Section 2, the Full Faith and Credit Statute, allows states to refuse to recognize same-sex marriages performed under the laws of other states, this section had been left intact in the Unites States v. Windsor.

Attorney General Ken Paxton issued a press release stating:

“No federal agency has the power to re-write the laws of Congress, and the Department of Labor’s regulatory attempt to redefine marriage in Texas infringes upon our state sovereignty and violates the U.S. Constitution. Furthermore, it would essentially strong-arm employers to choose to either violate federal regulations or state law. The federal judge rightly stopped this unconstitutional FMLA rule from taking effect, and we will continue to defend our sovereignty in this case to ensure that the Obama Administration’s effort to override our laws via federal rulemaking is permanently halted.”

Supreme Court to Rule on Same-Sex Marriages

The Supreme Court begins hearing the case of Obergefell v. Hodges on April 28, 2015. SCOTUS will decide on two critical questions that could render the injunction moot:

  1. Does the Fourteenth Amendment to the U.S. Constitution requires a state to license a marriage between two people of the same sex?
  2. Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

The U.S. has more than 70,000 married same-sex couples according to the Pew Research Center data from 2011.

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