How to Comply with Employer Notice and Posting Requirements in a Remote Working Environment
In the past year, Covid-19 has dramatically changed both how and where we work. Even after fully re-opening their offices, it is likely that many companies will continue to permit employees to work from home at least part of the time. A remote workforce poses a challenge for employers that must display certain notices and posters in their workplaces to advise employees of their rights under federal, state, and local employment laws.
How do they comply with this requirement if many of their employees are working from home?
In response to this widespread shift to remote work, on December 29, 2020, the U.S. Department of Labor issued Field Assistance Bulletin No. 2020-7 (the “DOL Guidance”), which clarifies how employers may comply with federal notice and posting requirements in a remote environment.
Continuous Postings vs. Individual Notices?
The DOL Guidance distinguishes between notices that must be continually posted (“Postings”) from those that have to be provided once to each employee individually (“Notices”).
The Fair Labor Standards Act, and Family and Medical Leave Act are examples of Postings that are required to be posted “at all times”. In such cases, employers will not fulfill their notice obligations by issuing a one-time direct mailing or other single notice to employees. The DOL Guidance states that an electronic posting constitutes a sufficient substitute for a Posting requirement ONLY where:
- ALL employees work exclusively from home;
- ALL employees customarily receive information from the employer electronically; AND
- ALL employees have readily available access to the electronic posting at all times.
If an employer has some employees on-site and others working remotely on a full-time basis, the employer may supplement a hard-copy Posting with an electronic Posting. Both forms of Posting are encouraged by the DOL in such circumstances.
Conversely, for federal statutes or regulations requiring individual Notices, employers may satisfy the Notice requirement by email or other electronic delivery, so long as employees customarily receive such information from the employer by such method.
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. For instance, affected individuals must be capable of accessing the electronic position without having to specifically request permission to view a file or access a computer. An electronic posting on a website or intranet is not considered an effective means of providing notice if an employer does not customarily post notices to affected employees electronically.
Additionally, the employer is required to take steps to inform employees of where and how to access the notice electronically. Posting on an unknown or little-known 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, which would not meet the required criteria for compliance.
Don’t Forget About State and Local Notice and Posting Requirements
Although the DOL Guidance applies only to federal notice and posting requirements, employers need to remember that states and cities have additional notice and posting requirements with which they also must comply.
This article is meant to provide general information and is not intended and should not be construed to constitute legal advice. Please consult your legal counsel for specific guidance for compliance with federal, state, and local laws.
- U.S. Department of Labor, Wage and Hour Division, Field Assistance Bulletin No. 2020-7, issued Dec 23, 2020.
- ASA Staffing Today, 1/14/2021. “How to Comply With Notice and Posting Requirements During the Age of Remote Working”. Epstein Becker Green, by Susan Gross Sholinsky, Eric I. Emanuelson, Jr., and Cynthia Joo Park.
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