The U.S. Department of Labor (DOL) recently updated the required federal worksite posters that all covered employers must display under the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA), and more changes are on the horizon. Here’s what employers, business owners, and HR managers need to know about the newly-updated forms and what needs to be done to ensure compliance:
FLSA Poster Update
Earlier this month, the DOL released a new “Employee Rights Under the Fair Labor Standards Act” poster to reflect recent changes to the law made under the Provide Urgent Maternal Protections for Nursing Mothers Act (the “PUMP Act”) which was passed last year.
Previously, the right of nursing mothers to express breastmilk only applied to non-exempt workers, i.e., employees subject to the FLSA overtime requirement. That reference has been removed from the updated FLSA poster, as the PUMP Act expanded the right to mandated pumping breaks to both exempt and nonexempt employees. The section regarding nursing mothers’ rights to pump at work is now called “Pump at Work.” Additionally, the new poster notes that certain narrow exemptions apply to the pump-at-work requirements. The “Pump at Work” section of the poster now states:
The FLSA requires employers to provide reasonable break time for a nursing employee to express breast milk for their nursing child for one year after the child’s birth each time the employee needs to express breast milk. Employers must provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by the employee to express breast milk.
A copy of the updated poster is available here and is provided by the DOL for employers to use to satisfy FLSA general notice and posting requirements.
Every employer of employees subject to the FLSA’s minimum wage provisions is required to display the DOL’s FLSA poster in a conspicuous and prominent place in all of their establishments, and the poster must be large enough for employees to be able to read it.
Critically, the DOL has stated that the updated FLSA poster is mandatory – all employers subject to the FLSA (which is virtually every business or enterprise that has any employees, with a few limited exceptions) are required to display the recently revised version. Prior versions of the FLSA poster are no longer compliant and will not fulfill employers’ posting requirements, so it is important that they be replaced and that the new version be posted.
FMLA Poster Update
The DOL also recently released a newly-updated model Family and Medical Leave Act (FMLA) Poster titled, “Your Employee Rights Under the Family and Medical Leave Act” in April 2023. A copy of the updated poster is available here and is provided by the DOL for employers to use to satisfy FMLA general notice and posting requirements, summarized below.
The new model FMLA Poster provided by the DOL provides a brief description of FMLA leave generally, and summarizes the major provisions of the law, including employee eligibility requirements, leave entitlements, benefits and protections, leave request information and procedures, employer obligations and responsibilities under the law, and where employees can find additional information and how to file a complaint for alleged violations. With the exception of a few minor changes and formatting changes, the updated poster by and large contains the same substantive information as the two prior versions the DOL previously published in April 2016 and February 2013. According to the DOL, FMLA-covered employers may start using the updated model FMLA Poster or may continue to use either the April 2016 or February 2013 versions of the poster to fulfill their posting requirements. In other words, employers currently using the April 2016 or February 2013 version of the model poster do not have to immediately replace it with the DOL’s updated model. As a best practice, however, employers should consider replacing prior versions with the new one and posting the April 2023 poster as soon as practicable, especially given the updated model’s more reader-friendly format and layout.
All FMLA-covered employers—i.e., generally, most private employers with fifty (50) or more employees[1] as well as government agencies—are required to display the DOL’s FMLA Poster (or acceptable substitute[2]) in a conspicuous and prominent place where employees and applicants can see it in plain view, and must do so at all of the employer’s facilities and locations, regardless of whether any employee works there and even if some or all of the employees are not eligible for FMLA leave. If a significant portion of its workforce is not literate or proficient in English, the employer must provide the general notice of employee rights under the FMLA in the language the employees speak. Currently, the new DOL FMLA Poster is only available online in English; a Spanish version of April 2016 version of the FMLA poster, however, is available on the DOL’s website and may be downloaded here.
In addition to displaying the FMLA Poster, if a covered employer has any FMLA-eligible employees, it must also provide each employee with a general notice about the FMLA by including it in an employee handbook or other written guidance materials explaining employee leave and benefits. If no such handbook or written leave materials exist (though they should), the employer may distribute a copy of the general notice to each new employee upon hire. This general notice requirement can be met by either duplicating the general notice language found on the DOL’s FMLA Poster or by using another format so long as the information provided includes, at a minimum, all the information contained in the DOL’s FMLA Poster. The general notice may be distributed electronically provided all the requirements are met.
Compliance with these posting and notice requirements is mandatory, and businesses that willfully fail or refuse to comply may be assessed a civil money penalty of up to $100 per violation for each separate offense.
More Changes Coming Soon
In addition to the recent updates by the DOL, another federal labor law poster update likely is forthcoming in the near future from the U.S. Equal Employment Opportunity Commission (EEOC) as well. While the EEOC released a new “Know Your Rights: Workplace Discrimination is Illegal” poster this past fall, the agency is expected to release a new notice in June 2023 to add additional information under the recently passed Pregnant Workers Fairness Act, which goes into effect June 27, 2023.
For covered employers that purchase their federal labor law posters from a third-party vendor, you may want to hold off on purchasing a new all-in-one poster until after the EEOC releases its updated poster next month. In the meantime, however, you still should print and post the free version of the FLSA (and FMLA) updated posters, discussed above, from the DOL’s webpage to ensure compliance until a new all-in-one poster is made available and properly displayed.
The Labor & Employment Attorneys at Stark & Stark Are Here to Help!
Employers with employee handbooks that include the DOL’s model posters should also consider updating their handbooks with the new models, and should be on the lookout for the new EEOC poster next month. All employers are encouraged to re-familiar themselves with both applicable state and federal labor and employment legal requirements to ensure compliance now and going forward. The attorneys in Stark & Stark’s Labor and Employment Group are available to help should you have any questions about these recent or any future changes, or if you have any other questions regarding your obligations to your workforce. We are here to help your Company develop notices, satisfy your legal requirements, and navigate any personnel or HR issues you may have. Contact us by phone at 609-895-7278 or via email at crand@stark-stark.com.
[1] The definition of “covered employer” under the FMLA is a bit more nuanced than a simple isolated headcount of an employer’s workforce at any given point in time. Rather, a private sector employer is covered by the FMLA if it employees fifty (50) or more employees for each working day during each of twenty (20) or more calendar workweeks in the current or preceding calendar year. See 29 U.S.C. § 2611(4)(A)(i); 29 C.F.R. § 825.104 (defining “covered employer”). An employee is considered to be employed each working day of the calendar week if the employee works any part of the week, and the workweeks do not have to be consecutive.
[2] The DOL’s FMLA Poster is specifically designed to fulfill the employer’s posting requirements, but employers are not required to use the DOL’s model poster. Employers may create their own poster or use another format, so long it includes, at a minimum, all of the information contained in the DOL’s FMLA Poster, is viewable by current employees and applicants for employment, and otherwise meets all other posting requirements.
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