PUBLICATIONS

Recognizing that remote work is here to stay for many employers, 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), Family and Medical Leave Act (FMLA), and the Employee Polygraph Protection Act (EPPA) require employers to post a notice of 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, requiring the notice to be “posted prominently where it can be readily seen by employees and applicants for employment.”

Traditionally, employers satisfy the various notice requirements by placing posters on bulletin boards in well-trafficked locations such as break rooms or lobbies.

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.

New DOL Guidance on Electronic Posting

On December 29, 2020, the DOL issued Field Assistance Bulletin 2020-7, which provides guidance to the DOL’s field staff on enforcing posting requirements in circumstances where there is no traditional workplace. Here are key takeaways from the 5-page bulletin:

• Notice requirements generally appear in one of two varieties: (1) one-time notice and (2) continuous posting.
• Employers may satisfy one-time notice requirements (e.g., as required by the Service Contract Act) by email delivery if employees customarily receive emails from the employer.
• For continuous-posting requirements (e.g., FLSA, FMLA, 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 employees.
• Employers with an entirely remote workforce may satisfy continuous-posting obligations using electronic-only means if they meet the following requirements:

• All employees exclusively work remotely;
• All employees customarily receive information from the employer 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 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 to whom different notices apply, the employees must be able to “easily determine” which posting is applicable to them.
• For laws that require posters be visible to applicants (e.g., 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.
• The DOL’s guidance only applies to federal posting requirements enforced by the DOL. It does not address posting requirements enforced by other federal agencies (e.g., EEOC) or state-mandated posting requirements.

Practical Considerations

For employers who are embracing remote work as part of a long-term strategy, this guidance is welcome news. Here are some practical considerations for employers taking that approach:

1. Consider designing an easily accessible space in your company intranet or employee portal for federal and state posters.
2. Consider making your company intranet/portal appear automatically on employees’ computers upon logging in.
3. If you have multiple groups of employees, covered by different laws (e.g., a group involved in government contracts, or groups in different states), ensure that each group can tell which posters are applicable.
4. Visit the DOL’s FirstStep Poster Advisor tool for help determining which federally-mandated posters are applicable to your workforce.
5. Consider using your employee handbook (or even the handbook acknowledgement page) to inform employees of the virtual location of postings.
6. If hiring is conducted remotely, incorporate all required notices in your applicant portal/applicant tracking system.
7. Check applicable state (and municipal) agencies for guidance on electronic posting of state/locally-mandated notices.

If you have any questions regarding the issues addressed in this Alert, or remote work in general, please contact the author, Sami Asaad, partner in our Hartford office, at sasaad@fordharrison.com, or the FordHarrison attorney with whom you usually work.