As workforces shifted to remote work due to the COVID-19 pandemic, challenges emerged for employers required to display certain notices and posters in the workplace to advise employees of their rights under federal, state, and local employment laws. The U.S. Department of Labor (DOL) issued guidance in December 2020 to clarify how employers may comply with federal notice and posting requirements in a remote environment.
The guidance, issued as Field Assistance Bulletin No. 2020-7, applies to postings required under the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), Section 14(c) of the FLSA, the Employee Polygraph Protection Act (EPPA) and the Service Contract Act (SCA). It did not address posting requirements enforced by other federal agencies or state-required posting directives. The guidance distinguishes between “individual notices” and “continuous postings”.
Continuous Postings: The guidance stated that for employers required to “post and keep posted” certain postings required by federal regulations, including FLSA and FMLA, an employer does not fulfill their statutory obligations by simply issuing a single notice to employees. The DOL guidance states that for notices that must be continuously posted at a worksite, the DOL will only consider electronic postings and acceptable substitute for a hard copy posting only if:
1. ALL employees exclusively work remotely;
2. ALL employees customarily receive information from the employer via electronic means, and
3. ALL employees have readily available access to the electronic posting at all times.
This ensures that the electronic posting satisfies the requirements that the postings be continuously accessible to employees. If an employer has employees working on-site and remotely on a full-time basis, the employer may supplement a required hard-copy posting with an electronic posting and the DOL encourages both forms of posting.
Individual Notices: For notices that are required to be provided once to each employee individually, the DOL guidance states that employers may satisfy the notice requirement by email or other electronic delivery, so long as employees customarily receive such information from the employer by that method.
If an employer seeks to meet the worksite posting requirement electronically, such as a on an intranet site, internet website, or shared network drive, the electronic notice must be as effective as a hard copy posting to allow the employees to readily see the posting. Employers must customarily post notices electronically in order for such postings to be deemed effective and they must specifically inform employees of where and how to access the electronic posting, otherwise the DOL will not consider the employer to have complied with the posting requirement.
PMP recommends that you review all of your postings to ensure that you are compliant with federal, state, and local employments laws.