In recognizing that remote work is here to stay for many employees, the U.S. Department of Labor (DOL) recently issued guidance on how employers can use virtual means to distribute and maintain the various posters required by federal employment laws.
Background
Several federal laws, including the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Employee Polygraph Protection Act (EPPA), require employers to post a notice of employee rights in a conspicuous location.
The FLSA, for example, requires employers to 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, mandating the notice be “posted prominently where it can be readily seen by employees and applicants for employment.”
Traditionally, employers have satisfied the various notice requirements by placing posters on bulletin boards in well-trafficked locations such as break rooms or lobbies. Because many of the 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 through electronic means.
Key Takeaways from DOL’s New 5-Page Bulletin
In late December 2020, the DOL issued Field Assistance Bulletin 2020-7, which provides guidance to the agency’s field staff on enforcing posting requirements in circumstances when there’s no traditional workplace. According to the bulletin, notice requirements generally appear as either (1) a one-time notice or (2) continuous posting.
You may satisfy one-time notice requirements (e.g., as required by the Service Contract Act) by e-mail delivery if employees customarily receive such messages from you. For continuous-posting requirements (e.g., the FLSA, the FMLA, the EPPA, and the Davis-Bacon Act), the guidance makes a distinction between employers with only some remote employees and employers with an entirely remote workforce.
For employers with some remote workers, physical posters are required for on-site employees, and the DOL “encourages” electronic posting for the teleworking individuals. If you have an entirely remote workforce, you may satisfy the continuous-posting obligations through electronic-only means if you meet the following requirements:
- All employees exclusively work remotely.
- They customarily receive information from you via electronic means.
- All employees have “readily available access” to the electronic posting at all times, e.g., via an internal or external website or a shared network drive or file system. The DOL notes that whether access is readily available is fact-specific and requires, for example, that employees can get to the notice without having to request permission.
- You must take steps to inform employees of where and how to access the notice(s) electronically.
If you have multiple groups of employees to whom different notices apply, the individuals must be able to “easily determine” which posting is applicable to them.
For laws that require posters be visible to applicants (e.g., the EPPA), virtual-only posting is permitted if (1) the hiring process is itself conducted remotely and (2) the applicants have ready access to the electronic posting at all times.
The DOL’s guidance applies only to federal posting requirements enforced by the agency. It doesn’t address posting rules enforced by other federal agencies—e.g., the Equal Employment Opportunity Commission (EEOC)—or the states.
Practical Considerations
For employers embracing remote work as part of a long-term strategy, the DOL’s guidance is welcome news. Here are some practical considerations for businesses taking the approach:
- Consider designing an easily accessible space in your company intranet or employee portal for federal and state posters.
- Think about making your company intranet/portal automatically appear on employees’ computers upon logging in.
- If you have multiple groups of employees covered by different laws (e.g., a group involved in government contracts or other units in different states), ensure each group can tell which posters are applicable.
- For help in determining which federally mandated posters are applicable to your workforce, visit the DOL’s FirstStep Poster Advisor tool.
- Consider using your employee handbook (or even the handbook acknowledgment page) to inform employees about the virtual location of the postings.
- If hiring is conducted remotely, incorporate all required notices into your applicant portal/tracking system.
- Check applicable state (and municipal) agencies for guidance on the electronic posting of state and locally mandated notices.
Sami Asaad is an attorney with FordHarrison LLP. You can reach him at sasaad@fordharrison.com.