How to Comply with Notice and Posting Requirements During the Age of Remote Working
As many employers approach their one-year anniversary of working from home, it is obvious that the COVID-19 pandemic has permanently changed both how and where we work. By 2025, an estimated 36.2 million Americans will be working remotely—a staggering 87% increase from pre-pandemic levels. Moreover, surveys reveal that company leaders plan to permit employees to work from home at least part of the time upon reopening their offices. However, 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.
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.
Employers should keep three core issues in mind:
“Post and Keep Posted” 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”). For federal laws requiring employers to post Postings “at all times,” (e.g., the Fair Labor Standards Act and Family and Medical Leave Act), employers will not fulfill their notice obligations by simply issuing a one-time direct mailing or other single notice to employees. Rather, 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. The DOL encourages both forms of Posting under 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. This is consistent with existing DOL regulations, which allow electronic delivery of required Notices only where employees already regularly use such electronic communications.
Electronic Postings Must be as Effective as Hard-Copy Posting
With regard to federal worksite Posting requirements, the DOL Guidance offers a clear rule: an electronic Posting, whether by intranet site, shared network drive, or file system Posting, must be as effective as a hard-copy Posting. A number of federal laws require employers to display Postings where they can be readily seen by employees and applicants. Such rules remain in full effect with respect to electronic Postings.
As the DOL Guidance explains, employers must take reasonable steps to ensure employees are capable of accessing the electronic Posting without having to specifically request permission to view the Posting or access a computer. Posting a notice on a company website or intranet is not sufficient unless the employer already posts similar Postings in such a manner on a regular basis. As the DOL provides in the Guidance, posting on an unknown or little-known website is the equivalent of posting a hard-copy Posting in an inconspicuous location and fails to meet the federal requirements.
Finally, the DOL reminds employers to take reasonable steps to inform employees of where and how to access the required Postings to remain in compliance. Employees should be capable of easily determining which electronic Posting is applicable to them and their worksite.
Do Not Forget State and Local Notice and Posting Requirements
Although the DOL Guidance applies only to federal notice and posting requirements, employers should remember that many states and cities have additional notice and posting requirements with which they must also comply. For example, New York’s Department of Labor requires certain posters for minimum wage information, job safety and health protection, and the like. California requires employers to post information related to medical leave and pregnancy disability leave, minimum wage, and workplace discrimination and harassment. Should a state or local agency provide conflicting instructions regarding electronic notices and posting, employers should follow such guidance with regard to the state and local notices and posters.
This post features contributions from Cynthia J. Park.