The majority of breakrooms have the same appearance. A microwave that has seen better days. A coffee maker with an unofficial cleaning schedule no one follows. Additionally, there should be a laminated poster listing employee rights under federal labor law somewhere near the door or above the refrigerator. The poster is typically a little crooked. Employers hang it, move on, and forget about it. As it happens, that poster might now be doing more harm than good in terms of the law.
Over the past few years, workplace legal compliance has become noticeably more complex, and the discrepancy between what employers post and what they actually do has begun to garner significant attention. In a recent lawsuit, the Equal Employment Opportunity Commission accused FedEx of discriminating against blind package handlers in North Carolina. This kind of case serves as a reminder that these laws are not symbolic. Agencies keep an eye on things. The lawyers for plaintiffs are keeping a closer eye on things.
The issue isn’t precisely that the posters are incorrect. It’s because they’ve lost touch with their actual surroundings. A company may post a notice about the National Labor Relations Act’s protection of the right to discuss wages while simultaneously enforcing an unofficial “no gossip” policy that essentially penalizes workers for doing so. For years, employment lawyers have pointed out that excessively expansive no-gossip regulations may be in violation of the NLRA, even if the goal was merely to reduce office drama. It’s not just awkward to hang a rights poster while implementing a policy that goes against it. This type of inconsistency appears as a pattern in litigation.
The problem of money is another. State and federal posting regulations are subject to change. For example, California’s Senate Bill 294 goes beyond merely putting up a static poster by requiring employers to give workers a written annual notice outlining their rights at work. Legal updates from 2022 or 2023 may be absent from what an employer hung in 2019. Furthermore, an out-of-date poster does not only fail to protect an employer in the event of a discrimination or wrongful termination claim. A jury may conclude that the company’s adherence to compliance was, at best, haphazard.
For employers who are genuinely managing their workplaces in good faith, it is important to state unequivocally that none of this is a crisis. However, good documentation and good faith are two different things, and courts are more interested in the latter. The poster alone is insufficient proof for an employee who was harassed, underpaid, or fired for reasons that seem like retaliation. They have the space between the poster and the experience, and cases are frequently developed in that space.
When discussing workplace legal risk, it’s common to overlook how much trouble begins with little details that go unnoticed. An EEOC notice faded. a manual that hasn’t been updated since the departure of an HR director. Unaware that teaching is a federally protected activity, a manager may instruct staff members not to discuss their pay. The wall-mounted poster was never intended to serve as a shield. It was supposed to be a floor. a place to start. Additionally, many employers misinterpreted the notice’s display as actually adhering to its terms.
Treating the poster as a prompt rather than a policy is the simplest and least glamorous solution. Go over it. Compare it to real-world procedures. Find out if there are any additional requirements under state law that go beyond those covered by the federal version. Although it’s still unclear if many small and mid-sized businesses are aware that their posting requirements have changed, the organizations in charge of enforcement are acting as though they are.
