2020 will undoubtedly be remembered as the year of the COVID-19 pandemic, and as the year that telework gained widespread acceptance in the U.S. While remote work creates several benefits for employers, it also comes with some challenges. In guidance issued this week, the U.S. Department of Labor (DOL) took on one of those issues: Under what circumstances can employers satisfy the mandatory requirement to physically post notices (“continuous posting”) or notify employees individually (“individual notices”) under certain federal statutes – here, the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) — by email or internet or intranet websites?
Continuous Posting Requirements
The FLSA and FMLA both require employers to continuously post, i.e., “post and keep posted” or post “at all times” mandated worksite notices. Employers are unable to meet the continuous posting requirement “through direct mailing or other [forms of] single notice to employees.” In addition, as a rule, the DOL does not consider posting done solely by electronic means to meet the continuous worksite notice requirements, unless all employees:
(1) Exclusively work remotely;
(2) Customarily receive information from the employer via electronic means; and
(3) Always have readily available access to the electronic posting.
However, with its latest guidance, the DOL suggests that the employer worksite posting requirement can be satisfied by electronic means, such as on an intranet site, internet website, or shared network drive or file system posting, if the electronic notice is as effective as a hard-copy posting. Effectiveness is dependent on factors such as whether the employer has informed affected employees where and how to access the notice electronically and whether the affected employees can access the electronic posting of the notice without having to specifically request permission to view a file or access a computer.
For worksites where an employer has both on-site and remote workers, the DOL strongly encourages those employers to supplement hard-copy worksite postings with one of the electronic posting methods identified above.
Individual Notice to Employees
Certain federal statutes discussed in the DOL guidance, including Section 14(c) of the FLSA, allow employers to meet notice requirements by delivering individual notices to each employee. Consistent with existing regulations, the DOL reiterated that such notice may be accomplished via email or other similar electronic delivery method, provided that the employee has customarily received information from the employer by electronic means.
Employer Best Practices for Posting Required Workplace Notices
An employer with an entirely remove workforce is excused from the general requirement to post hard-copies of all FLSA- and FMLA-required continuous notices, but only if if all employees customarily receive employer information electronically and always have readily available access to the electronic posting. The DOL does not consider electronic posting to be readily accessible, if employees must specifically request access to a computer, or ask for file permissions to view the posting. Employers must also take steps to inform employees of how and where to access the electronic posting. Individual notice to employees under Section 14(c) of the FLSA can still be accomplished by email or its equivalent, if the employer typically communicates with its employees electronically.
If you have questions or need any assistance concerning this new guidance, please contact Doug Taylor at (703) 525-4000 or firstname.lastname@example.org.
This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.