Putting up a government-required poster about employee rights in the breakroom over the coffee urn just won’t cut it in a world where many people must work from home due to the Coronavirus pandemic. Recognizing that fact, the U.S. Department of Labor (DOL) has issued special guidance about what it expects employers to do.
The Field Assistance Bulletin was issued by the DOL Wage and Hour Division on Dec. 29, 2020.
Among other things, it lays out the circumstances when employers will be permitted to distribute the poster information exclusively in electronic form. That only applies when all employees exclusively work remotely, all employees customarily receive information from the employer via electronic means, and when all of them can access the electronic posting at any time. However, the electronic communication methods can be used in certain other circumstances.
Among the federal laws requiring workplace postings are the Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA) and the Employee Polygraph Protection Act (EPPA), notes attorney Sami Asaad of the Ford & Harrison law firm.
Employers need to keep in mind that the DOL guidance only applies to federal posting requirements enforced by the Labor Department, which also includes the Office of Safety and Health Administration (OSHA) and Mine Safety and Health Administration (MSHA). It does not address posting rules that are enforced by other federal agencies like the Equal Employment Opportunity Commission or state-mandated posting requirements.
The FLSA, for example, mandates that employers post a DOL-issued notice “in every establishment where such employees are employed so as to permit them to observe readily a copy.” The FMLA goes even further, requiring the notice to be “posted prominently where it can be readily seen by employees and applicants for employment.”
“Because many of these laws were passed decades before the first portable computer (the FLSA dates back to 1938), few of them specifically address the concept of distributing notices using electronic means,” Asaad points out.
Notice requirements generally appear in one of two varieties: a one-time notice and continuous postings, according to Assad. One-time notice requirements (such as is required by the Service Contract Act) can be met by email delivery if employees customarily receive emails from the employer.
When it comes to continuous-posting requirements (for example, FLSA, FMLA, EPPA and the Davis-Bacon Act), the guidance makes a distinction between employers who have only some remote employees and those employers with an entirely remote workforce.
For Remote and Onsite Workers
For employers with some, but not all, employees working remotely, physical posters are still required to accommodate on-site employees, but DOL says it “encourages” electronic posting for the teleworking employees as well.
Employers who have an entirely remote workforce may satisfy continuous-posting obligations by using electronic means alone only if all employees exclusively work remotely and customarily receive information from the employer via electronic means. The guidance also insists that all employees enjoy “readily available access” to the electronic posting at all times.
This type of communication can include an internal or external website or a shared network drive or file system. However, DOL stresses that determining whether this kind of access is readily available is fact-specific, requiring for example that employees be able to access the notice without having to request permission.
For laws that require posters be visible to applicants (such as the EPPA), virtual-only posting is permitted in situations where the hiring process is itself conducted remotely and the applicants have readily available access to the electronic posting at all times.
“For employers who are embracing remote work as part of a long-term strategy, this guidance is welcome news,” Assad believes. He urges employers to make it a priority to design easily accessible space in the company’s intranet or employee portal for federal and state posters. He also suggests that employers consider making their company’s intranet/portal appear automatically on employees’ computers when they log in.
If you have multiple groups of employees covered by different laws—such as a group involved in government contracts or groups in different states—make sure that each group can tell which posters are applicable.
Assad warns that it is especially important for employers to check with their applicable state (and in some cases municipal) agencies for guidance about their requirements for electronic posting of state and locally-mandated notices. These laws have been proliferating in recent years, especially in states where employers are subject to a growing body of employment laws.
The employer must take steps to inform employees of where and how to access the notices electronically. When it comes to job applicants and the laws that require posters be visible to them (such as the EPPA), virtual-only posting is permitted if the hiring process is itself conducted remotely and the applicants have readily available access to the electronic posting at all times.
Assad suggests that a good place to start is DOL’s FirstStep Poster Advisor tool for help in determining which federally-mandated posters are applicable to your workforce and how they should be designed and displayed. In addition, consider using your employee handbook (or even the handbook acknowledgement page) to inform employees of the virtual location of postings.
The employer must take steps to inform employees of where and how they can access the notices electronically, he advises. “If the employer has multiple groups of employees to whom different notices apply, the employees must be able to ‘easily determine’ which posting is applicable to them.”
