Updated FLSA poster is now mandatory — DOL changes course

The Department of Labor (DOL) has released a new Employee Rights Under the Fair Labor Standards Act posting and, in an about-turn from earlier this week, now says all covered employers must display the revised version.

The April 2023 version contains changes required by the Provide Urgent Maternal Protections (PUMP) for Nursing Mothers Act, including:

• The section on Nursing Mothers is now called Pump at Work.
• Previously the right to break time to express breast milk only applied to employees subject to the FLSA overtime requirement (nonexempt employees). The reference to employees subject to the overtime requirement has been removed.
• The poster notes that certain narrow exemptions apply.

Previous versions of the FLSA poster no longer compliant

The DOL released the updated FLSA posting on May 2, and at that time said either the 2016 or 2023 version could be used.

On May 5, however the agency updated the information on its posting website to indicate that previous versions, including the April 2016 version, no longer fulfill the posting requirement and should be replaced.

Because of this change, this is a mandatory posting change and the latest version is required. To comply with posting requirements, employers should download, print, and post the updated FLSA posting.

Another federal posting change likely

The DOL notes that employers who purchase labor law posters from a vendor may want to wait before updating an all-in-one workplace poster.

These posters place multiple federal postings on one workplace poster and typically include the FLSA posting as well as the Know Your Rights: Workplace Discrimination is Illegal posting from the Equal Employment Opportunity Commission (EEOC). This posting must be displayed by employers with 15 or more employees, and currently has a revision date of October 2022.

The EEOC is likely to make a mandatory change to the Know Your Rights: Workplace Discrimination is Illegal posting on June 27, the date the Pregnant Workers Fairness Act takes effect. A mandatory change would make previous versions of that posting non-compliant.

As a result, employers may want to hold off on displaying a new all-in-one poster. The temporary FLSA posting can be displayed alongside an all-in-one poster until all mandatory changes are available.

Updated FMLA posting also released

The DOL has also updated the Family and Medical Leave (FMLA) posting with new format. It uses questions and answers to provide employees with:

• A description of the law,
• Eligibility requirements,
• Leave request information,
• Employer obligations, and
• A QR code that links to a website with information on how to file a complaint with the DOL.

Employers covered by the FMLA may replace their current FMLA poster with the 2023 version but are not required to do so. The agency notes that the 2013, 2016, and 2023 versions of the poster all remain compliant.

What should employers do?

To remain compliant with posting requirements, employers should:

• Download, print, and post the April 2023 version of the FLSA posting.
• Make sure the October 2022 version of the Know Your Rights posting from the EEOC is displayed if they have 15 or more employees and watch for an update to arrive in late June.
• Display the 2013, 2016, or 2023 version of the FMLA poster if they have 50 or more employees or are a public employer.

Key to remember: A new FLSA posting is available and employers must display the April 2023 version. A revised Know Your Rights posting is expected to be released in late June. Employers who purchase all-in-one posters containing multiple postings can display the 2023 FLSA posting next to their current poster until a poster with all changes is available.