With more and more employees working remotely because of the COVID-19 outbreak, you may fairly be wondering whether electronic messages or postings on the company’s intranet system will satisfy government requirements to provide notice to employees about their rights. The U.S. Department of Labor (DOL) recently answered the question the way most lawyers do: It depends.
How We Got Here
A year into the pandemic, most of us have become fairly adjusted to what has been labeled “the new normal.”
In the employment context, the biggest change has been the transition to telework in many workplace settings. Since March 2020, employers have considered various personnel issues surrounding remote work. The most pressing issue, of course, was how to make it feasible.
The year 2021 is when we may see things gradually return to normal, but many predict remote work is here to stay. As a result, many of you are considering how to meet your legal obligations in the new virtual setting, which could last long after the pandemic.
In late 2020, the DOL’s Wage and Hour Division (WHD) issued a bulletin on an important topic: notice requirements. As you likely know, several employment laws require you to provide notice to employees about certain rights, usually in the form of posters or other postings in a public area. For example, the Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA) require employers to display a general notice advising employees of their rights under the two laws.
Here’s what the WHD guidance had to say about remote work notice requirements under several laws.
Electronic Postings Under the FLSA
The WHD acknowledged the FLSA requires covered employers to post and keep posted a notice explaining the Act in conspicuous places in any establishment where employees work so they can readily view a copy. For remote work purposes, the agency stated an electronic posting can satisfy the Act only if the following criteria are met:
- All of your employees exclusively work remotely;
- All of them customarily receive information from your company via electronic means; and
- All have readily available access to the electronic posting at all times.
For example, when all employees work remotely and communicate with your company through electronic means, you may post the FLSA notice on an internal or external website or shared network drive that’s accessible to all employees, the WHD explained. Employers covered by the Employee Polygraph Protection Act and Service Contract Act may meet the posting requirements if the same three criteria are met.
By contrast, employers with employees subject to Section 14(c) of the FLSA, which provides subminimum wages to be paid in certain circumstances, have greater latitude to determine when a general posting is appropriate. If an employer determines a general notice to all employees is inappropriate, the WHD permits it to send an electronic notice directly to the affected worker.
Electronic Notices Under the FMLA
Similarly, the FMLA requires you to post (and keep displaying) a general notice explaining the Act’s rights and the procedure for filing a complaint under the law. The law’s regulations do permit an electronic posting as long as it meets the following requirements:
- The notice is posted prominently where all employees and applicants can readily see it; and
- It contains fully legible text.
Similar to the requirements for the FLSA posting, an electronic FMLA posting will be sufficient if (1) all hiring and work is done remotely, and (2) the posting is displayed on an internal or external website accessible to all employees and applicants.
WV-Specific Posting Requirements
As a reminder, West Virginia law, for instance, requires employers to post notices about certain state laws, including informing employees about their rights under the Wage Payment and Collection Act (WPCA) and prohibiting workplace discrimination under the West Virginia Human Rights Act (WVHRA). You also must post notices identifying your workers’ compensation carrier and providing other relevant information needed for questions about filing a claim under the state workers’ comp statute.
In addition, Workforce West Virginia requires you to display a notice containing information about insured workers’ rights and duties under the state’s unemployment compensation law.
Finally, public employers in the state are required to post notices informing employees about their rights under the Parental Leave Act and also display a workplace safety citation at each location where the cited violation took place in accordance with the West Virginia Occupational Safety and Health Act (WVOSHA).
Bottom Line
The WHD guidance offers a couple of key takeaways for employers. First, electronic notices cannot replace hard-copy notices unless the entire workforce is exclusively performing remote work. Therefore, employers using a blended or optional remote work model shouldn’t abandon the traditional hard-copy notice.
Second, electronic notices aren’t considered readily accessible if an employee has to request access to a file or online system to view it. Therefore, if an electronic notice is used, it’s important to make sure any company intranet or network drive is readily available to all employees at any given time.
The last year has brought many big and unexpected changes for employers. While you may have focused primarily on the big-ticket issues affecting your workforce, the new WHD guidance serves as a reminder that you should still be paying careful attention to even seemingly minor obligations in our new virtual landscape.
Shelby A. Hicks-Merinar is an attorney with Steptoe & Johnson PLLC in Morgantown, West Virginia. You can reach her at 304-598-8176 or shelby.hicks-merinar@steptoe-johnson.com.