With many employees shifting to work remotely long-term in the wake of the COVID-19 pandemic, employers must be mindful of how to comply with their employment-law posting requirements vis-à-vis their remote workers. The commonly used laminated collage of posters hanging on an employee bulletin board back at the office will not suffice for these workers. So how does one comply? The U.S. Department of Labor’s Wage and Hour Division has issued a Field Assistance Bulletin (“FAB”) [https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fab_2020_7.pdf] that provides guidance on how to comply electronically, and the answer is not as easy as simply emailing remote workers a single copy of the required posters.
By its own terms, the FAB applies to the poster obligations of four federal statutes, including the Fair Labor Standards Act (“FLSA”), Family and Medical Leave Act (“FMLA”), Employee Polygraph Protection Act (“EPPA”) and the Service Contract Act (“SCA”), but its guidance should prove helpful for compliance with other federal, state and local employee poster requirements.
Because several employment statutes require continuous posting (using language such as “post and keep posted” or provide notice “at all times”), the FAB explains that a single mailing of the requisite poster to employees is insufficient.
Where employers have both remote and on-site workers, hard-copy posting in company offices/facilities should continue, with electronic posting supplementing the hard-copy posting for those employees who work remotely. Additionally, electronic substitution for the continuous posting requirement will be acceptable only where (a) employees customarily receive information from the employer via electronic means, and (b) employees have ready access to the electronic posting.
Whether posting on an intranet site, internet website, shared network drive, or other electronic file system will suffice will depend on the particular facts involved with each employer – with the key determination being whether affected employees can readily access the posting. Key factual issues to keep in mind, include:
(1) access should be available without having to specifically request permission to view a file or access a computer;
(2) affected workers should be notified where and how to access the notices electronically; and
(3) affected workers should be able to easily determine which postings are applicable to them.
As the FAB explicitly warns, “[p]osting on an unknown or little-known electronic location has the effect of hiding the notice, similar to posting a hard-copy notice in an inconspicuous place, such as a custodial closet or little-visited basement.”
Because some statutes, such as the FMLA and EPPA, require notice to applicants as well, employers who interview and hire remotely will need to be sure to make such notices readily available electronically to applicants, in addition to employees.
Both the U.S. Department of Labor’s and the Texas Workforce Commission’s websites include additional helpful guidance on employer poster and recordkeeping duties, with links to the requisite posters for free downloading and printing (with many posters available in multiple languages):
- DOL Link: https://webapps.dol.gov/elaws/posters.html
- TWC Link: https://www.twc.texas.gov/businesses/posters-workplace
For further information on this topic, please reach out to blog author, April Walter, at april.walter@keanmiller.com