|By Mark F. Kluger and William H. Healey
Do you remember when posters on the wall meant Joe Namath, Farah Fawcett, Pink Floyd or the Dead? Yes, we’re that old! So maybe, Magic Johnson, Madonna, Van Halen or Patrick Swayze? Or for you kids, Michael Jordan, The Nsync Backstreet Boyz to Men, Pamela Anderson or David Hasselhoff? Well now that we’re all grown up, we are so excited to introduce you to the new and improved, just released, EEOC poster. That’s right, last week, the federal agency announced that it had rejiggered its iconic EEO is the Law poster and released the dazzling, drop the mic, Know Your Rights poster, with its sexy new name and look.
In its press release announcing the new poster, the EEOC’s Chair touts the use of plain language, so that hopefully even lawyers can understand it and the exciting new bullet point formatting which will better assist employees in bringing more frivolous lawsuits, knowing their rights. This updated poster includes some substantive changes, such as a bullet point identifying as a form of discrimination, plain Harassment (including unwelcome verbal or physical conduct), without any connection to a protected classification. That strangely generic description could lead to more claims of discrimination based on what we might consider performance management, but which makes an employee feel “harassed.” The poster also clarifies that sex discrimination includes pregnancy and related conditions, sexual orientation, and gender identity.
As if this poster was not cutting edge enough– check this out—it comes equipped with a QR code that, when scanned with a smart phone, brings an eager employee right to the EEOC portal used for filing discrimination charges. Oh good. We can now get sued faster and with even less effort! In that same press release, the EEOC Chair describes the new poster as win-win for employers and workers alike. Sorry Madam Chair but, we’re just not feeling that.
Although there is no timeline indicated for replacing the old poster, we recommend adding it to your “to do” list while we’ve got it on your mind. If you have remote or hybrid workers, you need to add the poster to your intranet (or any drive accessible to those employees) or if you have none of the above, send it directly to them by email or the kind that requires a stamp so they too can partake in that win-win feeling. Also remember what we told you way back in August 2021 about the legal requirement to distribute the federal postings to your remote workers and those for each specific state in which those employees are hunkered down. That has not changed.
If you thought this is all we could possibly have to say on this scintillating topic, sorry to disappoint, but at the very least, you New Jersey employers need to stay tuned for another minute. In August 2022, the New Jersey Division on Civil Rights (“DCR”) showed it was a few steps ahead of the feds and issued new posters and regulations regarding the New Jersey Law Against Discrimination and the New Jersey Family Leave Act.
Among the revised regs is the option for employers to post the new NJLAD and NJFLA poster on a company intranet or employee internet site in lieu of using the old fashioned thumbtacks on the bulletin board method. In order to completely eliminate the retro version of posting though, all employees will need to be able to access the electronic version and you must provide them with written notice that the posting is there — in other words– notice of the notice. To be safe, we recommend getting a signed acknowledgment that each employee has seen the posting or knows it’s there. Like their federal cousins, these posters also come complete with QR codes that bring those who scan right to the DCR’s how to a file a complaint page.
These new regs still require not only posting but an annual distribution of both posters to each employee on or before December 31 each year. You must also hand it to each new hire. This way, employees can post them on their own walls at home or in the office. There is a bit of a twist here though. The annual distribution requirement can be by email, a stocking stuffer or in with a paycheck or stub or simply by an annual notice to all employees that have access to the intranet letting them know, possibly again, that the poster is there. This is all very similar to the process for the annual and also mandatory distribution of the Gender Equity, Reporting and Recordkeeping Requirements, Conscientious Employee Protection Act, and Family Leave Insurance notices.
Always remember that in addition to the fines that can be imposed for a lack of compliance, not remaining up to date on these postings can also be used as background noise in a discrimination case to show that you don’t take EEO issues seriously. Most importantly, your failure to keep your notice postings up to date also makes us look bad for not reminding you. So let’s get this done. Don’t embarrass us!