With more employees working remotely, which may be the norm in the future, questions arise regarding how to ensure compliance with posting requirements.

On December 29, 2020, the United States Department of Labor Wage and Hour Division (WHD) issued Field Assistance Bulletin 2020-7 (FAB) that provides guidance on enforcing posting requirements in circumstances where there is no traditional workplace.  The FAB provides guidance to WHD field staff on when, as a matter of enforcement policy, WHD will consider these forms of electronic notice to satisfy the notice requirements under the following statutes and their corresponding regulations: the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), Section 14(c) of the FLSA (Section 14(c)), the Employee Polygraph Protection Act (EPPA), and the Service Contract Act (SCA).

In most cases, according to the FAB, these electronic notices supplement, but do not replace, the statutory and regulatory requirements that employers post a hard-copy notice. Whether notices are provided electronically or in hard-copy format, the FAB states it is an employer’s obligation to provide the required notices to all affected individuals.

First, WHD states that if a statute and its regulations require a notice to be continuously posted at a worksite, in most cases, WHD will only consider electronic posting an acceptable substitute for the continuous posting requirement where (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.

Second, WHD states that 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.

Third, WHD states that if an employer seeks to meet a worksite posting requirement through electronic means, such as on an intranet site, internet website, or shared network drive or file system posting, the electronic notice must be as effective as a hard-copy posting.  In other words, affected individuals must be able to readily see a copy of the required postings, and where an employer chooses to meet a worksite posting requirement through electronic means, the same requirements apply in the electronic format.  Therefore, employers should communicate to employees that access to the electronic notices are found on the intranet.

However, WHD will not consider electronic posting on a website or intranet to be an effective means of providing notice if an employer does not customarily post notices to affected employees or other affected individuals electronically.  

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 WHD’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.

Therefore, it is recommended for HR to consider making the company intranet/portal appear automatically on employees’ computers upon logging in, and if there are 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.  In addition, HR can modify the employee handbook (or even the handbook acknowledgement page) to inform employees of the virtual location of postings.  Finally, if hiring is conducted remotely, incorporate all required notices in the applicant portal/applicant tracking system or career page.

Additional ASE Resources
GovDocs – ASE members receive a 15% discount on poster purchases via GovDocs.com. Non-members receive a 5% discount. Please visit https://www.aseonline.org/Data-Research/Labor-Law-Posters for more information.

Source:  Ford & Harrison LLP 12/30/20