DOL Guidance on Electronic Posting of Federally-Required Notices

Originally published by Michael E. Brewer, Caroline B. Burnett and Emily Harbison.

While most employers transitioned large segments of their workforces to remote work over the course of the past year, many also questioned how to satisfy various posting requirements when their workforce is at home. Fortunately, in late December, the Department of Labor (DOL) issued guidance on how employers can use virtual means to distribute and maintain the various posters required by federal employment laws.

Background

By way of reminder, several federal laws, including the Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), the Employee Polygraph Protection Act (EPPA), and the Service Contract Act (SCA) require employers to post a notice of rights in a conspicuous location. Typically — and pre-pandemic — employers met the notice requirements by placing posters on bulletin boards in well-trafficked locations such as break rooms or lobbies. But with the increase in remote work, many employers used company email and intranets as a workaround to notify employees of their rights. Now, employers have guidance to ensure their practices are compliant.

 

Field Assistance Bulletin 2020-7

On December 29, 2020, the DOL issued Field Assistance Bulletin 2020-7 that guides the DOL’s field staff on enforcing posting requirements in circumstances where there is no traditional workplace. (Note that the DOL’s guidance applies only to federal posting requirements enforced by the DOL; it does not address posting requirements enforced by other federal agencies, like the EEOC, or state-mandated posting requirements.)

Continuous Posting

The FLSA and FMLA do not permit employers to meet their notice obligations through a direct mailing or other single notice to employees. If a statute and its regulations require a notice to be continuously posted at a worksite, usually electronic posting is an acceptable substitute if:

1. All of the employer’s 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.

Restated: Relying exclusively on electronic posting is permissible only where the entire workforce works remotely. Where an employer has employees on-site and other employees teleworking full-time, for example, the employer may supplement a hard-copy posting requirement with electronic posting. The Department encourages both methods of posting in this circumstance.

Individual Notices

Where particular statutes and regulations permit delivery of notices to individual employees, the notice requirements may be met via email delivery (or another similar method of electronic delivery), only if the employee customarily receives information from the employer electronically. This is consistent with the Wage and Hour Division’s existing regulations, which permit electronic delivery of required communications only where employees already regularly use such electronic communications.

Required Access

• All employees have “readily available access” to the electronic posting at all times, such as on 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 be able to access the notice without having to request permission.
• The employer must take steps to inform employees of where and how to access the notice(s) electronically.
• If the employer has multiple groups of employees for whom different notices apply, the employees must be able to “easily determine” which posting applies to them.

Takeaways

Employers may wish to consider designating an easily accessible space on their company intranet or employee portal for federal and state posters. We recommend using the employee handbook (or even the handbook acknowledgement page) to inform employees of the virtual location of postings. Last, be sure to check applicable state and local agencies for guidance on electronic posting of state/locally-mandated notices.

For assistance, contact your Baker McKenzie employment lawyer.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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