The National Labor Relations Board (NLRB) has mandated that the poster is titled "Employee Rights Under the National Labor Relations Act," which has received a great deal attention from concerned employers and employer advocacy groups, must be posted by April 30, 2012. None of the various legal challenges to the NLRB posting rule prevailed. There is another legal challenge to the posting rule pending in a federal District Court, but no decision has been issued in that case and there is no reason to expect one will be issued before April 30.

With only a few exemptions, all employers, regardless of your company's union status,will be required to post the notice advising employees of their rights regarding unions. Specifically: 

• The right to join a union;
• The right to bargain with the employer through representatives, such as a union, about wages, benefits, hours, and other working conditions;
• The right to discuss wages and benefits and other working conditions with co-workers;
• The right to take action with co-workers to improve working conditions by, among other things, making internal complaints to the employer or to a government agency or by asking for help from a union; and
• The right to strike and picket. 

The poster also advises employees that it is illegal for an employer to prohibit employees from talking about unions during non-work time, such as breaks or before or after work. It notes that it is illegal for an employer to question employees about their support for a union in a way that discourages them from supporting a union, and to make promises of benefits in order to discourage union support.

Noncompliance may be treated as an unfair labor practice and can be used as damaging evidence in a lawsuit. The poster must be posted in conspicuous place where other notifications of workplace rights and employer rules and policies are posted and must be no smaller than 11" x 17". The NLRB also requires employers to include a link to the poster on internal or external web sites if other employment policies are posted there.

For your benefit, the poster may be downloaded by clicking here: New NLRB Poster

This may also be a good time to ensure that your other state and federal mandated posters are up-to-date.

An auditor may come knocking at your door if you have errors in your payroll that result in a violation of the Fair Labor Standards Act (FLSA). It is estimated that more than one-half of all employer groups have misclassified their employees under FLSA, though many do not realize it.

Generally the Department of Labor (DOL) will initiate an audit after a current or former employee files a complaint or during a routine investigation. Much like an audit for a potential ERISA violation, the DOL will visit your organization to conduct interviews, examine time clocks and ensure that all employment notifications are available to your employees. The auditor will also review up to three years of wage and hour records to determine if there are any violations in your payroll practices.

To avoid an overtime DOL audit, consider these recommendations:

• Understand the language and content of FLSA to ensure that you will be in compliance with its regulations.
• Conduct an internal audit to reveal any misclassifications before the DOL has an opportunity to do so. Do this annually, or at the very least, when a red flag occurs. Red flags may include a reorganization that affects job classifications, changes in the federal or state law, or an increase in hours worked by employees who are not clearly exempt or non-exempt.
• Review your employees' job descriptions to make sure they are accurate and reflect the jobs that the individuals are actually doing.
• Review your employees' job duties to make sure they fall within the correct exemptions: administrative, executive, professional, computer or outside sales.
• Determine if you have properly calculated overtime for non-exempt employees. State laws differ, so make sure you understand your state's overtime laws.
• Make sure that all required employment postings are hung up and are visible to your employees.
• Consider having an attorney perform routine audits to support an argument that you were paying your employees "in good faith."
• Analyze your organization's timekeeping procedures, methods of calculating regular rate pay and child labor practices (if applicable).
• If your internal audit reveals a problem, remedy the situation immediately. Consult legal counsel again for the best way in which to fix the problem.
• Determine whether the state and federal laws differ in any way, and make sure you are in compliance.
• Pay employees who were misclassified for overtime pay under the supervision of your attorney.

© 2011 Zywave, Inc.