The “Oh By The Way” Rule and the EEOC’s Increase in Poster Fines

All employers should be familiar with the required EEO Posters. A lack of familiarity and compliance could cost you. Federal law requires employers to post a notice describing the federal laws prohibiting job discrimination based upon race, color, sex, national original, religion, age, disability or genetic information. The “EEO is the Law Poster” explains the law and how an employee can file a complaint. The poster must be displayed in a conspicuous location in the workplace where notices to applicants and employees are usually posted. Employers are also encouraged to post the electronic notice on their internal websites. The U.S. Equal Employment Opportunity Commission (EEOC) prepares the posters and enforces posting requirements.

In early June 2016, the EEOC increased the monetary fine for employers who fail to make the required postings. The penalty is now $525 per violation, a 150% increase from the previous $210 fine. In 2015, the EEOC received 89,385 charges, and it is believed that this number will only increase in 2016. For employers, the first line of defense against an EEOC discrimination charge is compliance with the poster law.

There are a few additional things employers should review to help protect themselves against EEOC charges, and protect themselves from the “Oh-by-the-way” Rule. The “Oh-by-way” Rule is when the EEOC comes to a business to investigate a charge and in addition to looking at whether posting requirements are met, will say, “oh, by the way,” we would like to look at the following things to make sure they are also in compliance:

1. Employee handbook. Review your policies and make sure they are up to date with current laws and regulations; if you don’t have an employee handbook, give us a call and we can help you develop one.

2. Personnel files. Ensure that your employees’ medical records are separate from their personnel records and locked in a secured location.

3. Designated EEO Employee. Make sure your employees know who they can file a complaint with at each of your facilities. Also, ensure that the designated EEO employee knows what their duties are when a complaint is made to them.

It is not uncommon for EEOC investigators to use the “Oh-by-the-way” Rule when conducting investigations, making it important for employers to stay on top of new laws and regulations. If you have any questions about new regulations or rules, we here at Joseph, Hollander & Craft, are willing and able to help.

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