Does anyone know what constitutes a separate offense for failure to comply with the requirement to post the new EEOC poster in a conspicuous location (Nov. 21, 2009)?  Is the statutory penalty assessed for each employer site that fails to comply a single time, or can the penalty continue to accrue based on failure to comply?

Jonathan F. Cohen, Esq.
APRUZZESE, McDERMOTT,
  MASTRO & MURPHY, P.C.
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Honestly, I am not sure but I would think that both situations have the opportunity to incur penalties. Each employer site is treated as a separate location and would need separate posters. On the other hand, I would also think that if it was known that an employer failed to post required posters and remedy the offense that additional charges would be incurred as well. However, I found something more important than the penalty:

Two separate U.S. Appellate Courts have ruled that when employers fail to post required materials about employee rights under equal employment opportunity laws, the deadline for filing discrimination complaints is essentially lifted. Called “equitable tolling” by the lawyers, it means employers will have to remain subject to complaints that might otherwise have been untimely and excluded because workers didn’t file by the deadline imposed. In essence, employers cause their own exposure to be extended. Is that smart? We don’t think so.

The two cases are:

Marcos Mercado and Suzanne Hebert-Jomp v. The Ritz-Carlton San Juan Hotel, Spa & Casino, 1st Circuit, No. 04-1630, May 31, 2005.
“Appellants claimed that the filing period did not begin to run until they received notice of their rights when they met with an attorney…and, they claimed that Ritz-Carlton was barred from asserting timeliness as a defense because the hotel failed to comply with EEOC regulations requiring employers to post notices advising employees of their legal rights relating to employment discrimination.”

Leslie East, v. Graphic Arts Industry Joint Pension Trust, DC Circuit Court, No. 96-7061, March 14, 1997.
The District of Columbia Human Rights Act (DCHRA) sets a one-year limitation period to actions under its provisions. It also requires employers to “post and keep posted in a conspicuous location where business or activity is customarily conducted or negotiated, a notice whose language and form has been prepared by the Office, setting forth excerpts from or summaries of, the pertinent provisions of this chapter and information pertinent to the filing of a complaint.” Failure to post as required can prevent the employer from using a defense based on timeliness.

Is the poster legally required?

I understand the preamble to the proposed regulation issued in March says (at pdf page 9 at http://edocket.access.gpo.gov/2009/pdf/E9-4221.pdf online): “Finally, the proposed regulation notes that covered entities are required to post notices in conspicuous places describing GINA’s applicable provisions.” And at page 11: “GINA will require that covered entities obtain and post revised notices informing covered individuals of their rights under the law.”

But I can’t find where in the official text of the proposed regulations there is any posting requirement. I don’t see it in the GINA text either.

Can someone tell me the statutory or regulatory basis for the new GINA posting requirement?

I know it’s a good idea to post posters and EEO and all that and informing employees is important and so on and Title VII requires a poster and etc., but where is the law or regulation for GINA?

kent mannis - 19 November 2009 01:13 PM

Is the poster legally required?

Can someone tell me the statutory or regulatory basis for the new GINA posting requirement?

I found my own answer; in addition to the proposed GINA regulations issued in March, the EEOC also proposed “procedural” regulations for GINA in May; see http://edocket.access.gpo.gov/2009/E9-11560.htm online.

The May “procedural” regulations propose to amend 29 CFR 1601.30(a) (the Title VII and ADA posting rule) by amending “title VII or the ADA” to read “title VII, the ADA, or GINA”; thus, 29 CFR 1601.30(a) (as amended) will require a GINA poster.

nevermind….