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When could a mandatory posting change occur?

The timing of a posting change for federal contractors and general employers may be different, based on the wording in the executive orders impacting the poster:

• Federal contractors: The executive order banning affirmative action gives federal contractors time to comply with the change, stating that, “For 90 days from the date of this order, Federal contractors may continue to comply with the regulatory scheme in effect on January 20, 2025.” During that time, more guidance regarding a posting change may be provided.
• Employers with 15 or more employees: A posting change for other employers is not likely to come without its day in court. The Supreme Court found in Bostock v. Clayton County, Georgia that firing individuals because of their sexual orientation or transgender status violates Title VII, as this is discrimination on the basis of sex. It may take a court ruling to result in an official change to the department’s definition of sex and an update to the EEOC’s workplace poster. The EEOC’s website on sexual orientation and gender identity discrimination continues to state that the law forbids gender identity discrimination when it comes to any aspect of employment.

There is always the possibility that a government agency will make a change based on its own interpretation of the law, however. Federal contractors and employers with 15 or more employees should be ready to display a revised poster if a new version is released by the EEOC.

Key to remember: Changes to the way the current administration views affirmative action and the definition of sex could bring a mandatory change to the Know Your Rights poster from the EEOC.

Three years

Employers should keep these documents for at least three years. They must keep any records with medical information confidential and separate from any personnel file(s).

Key to remember: During audits or investigations, the U.S. Department of Labor can make broad information requests, so employers need to have excellent recordkeeping.

The court ruling

According to the court, there was nothing to put the employer on notice that the request for two months of maternity leave was anything other than a standard request for time to bond with and care for the child. The PWFA, however, does not cover time off for bonding or childcare.

The court found that, because the employee did not connect a limitation with the leave request, the employer’s duty to engage in the interactive process was never triggered, and its termination of Raquel did not violate the PWFA.

Keiper v. CNN America, Inc., Eastern District of Wisconsin, No. 24-CV-875, December 16, 2024.

Key to remember: While this court found that asking for “maternity” leave by itself is not enough to trigger an employer’s PWFA obligations, another court might find differently, as “maternity” could easily be seen as including delivery and recovery, which are pregnancy-related limitations under the PWFA.

The DOL chimes in

In an interpretive opinion letter released on January 14, 2025, the U.S. Department of Labor (DOL) said that employers should treat state paid leave the same.

Employers need to keep some information in mind:

• Designating leave: When employees take leave under a state paid family or medical leave law if the leave is also covered by the FMLA, employers must designate it as FMLA leave and give the employee a designation notice, which should include the amount of leave to be counted against the employee’s FMLA leave entitlement.
• Receiving state pay: During FMLA leave, when employees receive pay from a state family or medical leave law, the FMLA “substitution” provision does not apply to the part of leave that is paid. As a result, employees may not use PTO, and employers may not require it when leave is paid by state law.
• Supplementing pay: If employees are receiving pay through state paid family or medical leave that doesn’t fully pay for their FMLA-covered leave, and employees have available PTO, employers, and employees may agree, where state law permits, that employees may use their PTO to supplement their pay under a state leave law.
• Qualifying conditions: If employees use state paid family and medical leave for reasons that don’t qualify as FMLA leave, employers may not count the leave against the employee's FMLA leave entitlement. If, for example, a state paid family leave law allows for paid leave to care for a family member with a medical condition that is not an FMLA-qualifying serious health condition or serious injury or illness, employers may not count the leave taken under such circumstances against the employee’s FMLA leave entitlement.
• Exhausting leave: If employees’ leave under a state paid family or medical leave program ends before the employees have exhausted the 12 weeks of FMLA leave, employees are still entitled to the FMLA protections. If, therefore, employees use up all the state paid leave, after that, the FMLA substitution provision would apply and employees would be able to elect, or the employer would be able to require the employee, to substitute employer-provided accrued paid leave.

Key to remember: Employers may not require employees to use their accrued paid time off when employees are receiving pay under a state paid leave law. Employees are also not allowed to do so. Employees, however, might be able to use PTO to round out their income and bring it to full pay.

Why bring this up now five years later?

There seems to be a resurgence of concern over employees NOT wanting to have their cameras on during meetings. This may, if employers peel back the layers, indicate there’s something else going on with workplace culture. Something deeper, that if not addressed could get pretty stinky.

Cameras on or off isn’t the issue

Often, when an issue bubbles up, it’s not really about the “thing.” It’s about a deeper-rooted grievance, annoyance, frustration, or some other negative emotion. The key is to find out what that is.

When talking about camera usage, for example, employers can start by asking themselves a few questions:

• Has the cameras-on policy been in effect for a while or is it new?
• Is the policy upheld consistently?
• Is it truly a “policy” or is it simply encouraged?
• If it’s a policy, is it in writing and has it been communicated?
• Has an employee’s behavior changed? (camera used to be on and now it’s not)
• What’s the reason for wanting cameras to be on?

What’s the ‘why’ behind a policy?

The answers to these questions just scratch the surface, but will help employers start to understand the disconnect, if there is one.

For some employers, having cameras on during meetings helps them read nonverbal cues and gauge audience reactions. It can be a positive way to improve communications.

For other employers, they might not trust that employees are giving meetings their full attention like they would in person. In that sense, cameras become a form of punishment … a babysitter, of sorts. Employees could perceive that as being treated like a child versus being trusted to get the job done like an adult.

Again, the issue isn’t the cameras, but rather company policies and workplace culture. If an employer has a bunch of meaningless policies that aren’t consistently enforced, it erodes employees’ trust and commitment, which can spiral into retention issues.

If, however, an employer has well-thought-out policies, explains the “why” behind them, and enforces policies the same way for everyone, not only will that help create buy-in, but it will also improve workplace culture. And that’s something all employers should focus on.

Key to remember: Peel back the layers of your “cameras on” policy if you have one. Know the reasons for the policy and how employees may react.