Employment Law

It’s a New Year, is it Time for New Posters?

January 2020

By Anne E. Jenness*

If you are among the employers who review and replace their labor law compliance posters in January of each year, it may be time for an update. In 2018, New Hampshire expanded its list of protected categories under RSA 354-A to include gender identity. In the fall of 2019, the New Hampshire Department of Labor released a new “Employment Discrimination is Against the Law in New Hampshire” poster, which includes that change, along with an updated web address for the New Hampshire Commission for Human Rights. As a result of this change, employers who are required to display the New Hampshire anti-discrimination poster should review their compliance posters to ensure that they are displaying the correct version. The link to the new poster is: https://www.nh.gov/hrc/documents/employment_poster.pdf

While you are reviewing your compliance posters, give some thought to the following questions:

  • Are your posters in the right places? Despite some changes to New Hampshire law that may give employers more flexibility on how to make state-law posters available, Federal regulations continue to require that certain postings be made in “conspicuous” places or “prominently displayed.” In light of these requirements, when placing your posters, consider whether all of your employees will have a reasonable opportunity to view them. Employers frequently place posters in places like break rooms or cafeterias, on bulletin boards where important information is regularly posted, or near time clocks. These locations can be a good start, but they may not be sufficient. Do you have employees who do not use or access the areas where your posters are displayed? For example, do you have employees who work on a separate floor from other staff? Do you have employees in multiple locations? You may need to place posters on multiple floors of a single building or in various work areas.
  • Do you have employees who telecommute or who work remotely all of the time? You may need to take additional steps to make posters available, especially to fully-remote employees. Ideas to ensure that your fully-remote employees are covered include distributing physical copies of posters to your employees (really!), and placing poster information on your internal website. If you decide to post online for your remote workforce, consider regularly sending those employees links to the postings. Wondering whether you can use the intranet posting and email technique for supplying posters to all of your employees, including those who work onsite only? Web posting and distribution may meet the requirements for providing certain New Hampshire posters to your general workforce. However, you currently cannot use a website posting as a substitute for displaying physical copies of the required federal posters in your workplace. Thus, in most situations, the more prudent practice is to physically display both New Hampshire and federal posters.
  • Are your posters visible to applicants? Some postings, like the federal Equal Employment Opportunity (EEO) poster, must be in places where applicants, not just employees, can view them. If you are required to display the federal EEO poster or any other applicant-facing posters (e.g. Family and Medical Leave Act, the Employee Polygraph Protection Act), ensure that you have these posters in places where your applicants can access them. Which posters you are required to display depends on factors like how many people you employ; for more information, see the State of New Hampshire and federal Department of Labor websites (linked below), or consult with Counsel.
  • Are your posters in the right languages? If you have a portion of your workforce that is not literate in English, you may be required (or, at a minimum, encouraged) to make certain postings in a language that those employees can read.
  • Are you comfortable with your process for reviewing and updating your posters? Employment laws change frequently, and, especially at the level of New Hampshire state law, such changes may not always receive significant media coverage. Updates to posting requirements may happen throughout the year, with various effective dates for new requirements. Consulting with Counsel can help ensure that you are consistently displaying the correct posters in the correct areas, and the possible consequences for failing to make the required postings.

For more information on New Hampshire’s mandatory postings, see:
https://www.nh.gov/labor/forms/mandatory-posters.htm

For more information on Federal posting requirements, see:
https://www.dol.gov/general/topics/posters

* Anne Jenness is admitted in New Hampshire and California.

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Attorney Anne Jenness
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