Michael J. Sheppeard
Partner
212-784-6939 msheppeard@sh-law.comAuthor: Michael J. Sheppeard|February 18, 2021
New York and New Jersey businesses have seen their remote workforces grow exponentially in the wake of COVID-19. The shifting nature of the “workplace” requires employers to rethink many of their compliance obligations, including how to satisfy their obligation to inform workers of their statutory rights.
Prior to the pandemic, employee notices were traditionally posted in a break room or other high-traffic area of the workplace. With many employees now working from home, employers must find alternative ways to ensure that the notices are conveyed and their statutory obligations are satisfied.
The Department of Labor (DOL) recently issued a Field Assistance Bulletin that clarifies how employers can meet their notice requirements under several federal employment laws: 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). As noted in the guidance, the posting requirements vary under each law. For instance, the EPPA and FMLA require notices to be readily seen by both employees and applicants for employment.
The posting requirements also dictate how the notice must be delivered. The FLSA and FMLA require continuous posting, while the SCA and Section 14(c) allow employers to meet notice requirements by delivering individual notices to each employee. Below is a brief summary of the DOL’s guidance with respect to each requirement:
The Field Assistance Bulletin also emphasizes that any electronic notice must be as effective as a hard-copy posting, noting that the requirement that affected individuals be able to readily see a copy of the required postings, applies equally when an employer chooses to meet a worksite posting requirement through electronic means. According to the DOL, a determination of whether affected individuals can readily see an electronic posting depends on the facts. “For instance, the affected individuals must be capable of accessing the electronic posting without having to specifically request permission to view a file or access a computer,” the Field Bulletin states. “Consistent with its existing regulations, 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.”
Similarly, if the employer has not taken steps to inform employees of where and how to access the notice electronically, the DOL will not consider the employer to have complied with the posting requirement. “Posting 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,” the guidance states.
The Field Assistance Bulletin also addresses the specific requirements of the FLSA and the FMLA, which most employers must follow. Below are a few key points:
When employers are determining what type of notice posting is required, it is important to consider the regulatory requirements, as well as the nature of your workforce (i.e. completely remote or both onsite and offsite.) In addition, when providing notices electronically, employers must also ensure that they are posted in a location that employees will see and that employees known where to find them.
If you have any questions or if you would like to discuss the matter further, please contact me, Michael Sheppeard, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.
Partner
212-784-6939 msheppeard@sh-law.comNew York and New Jersey businesses have seen their remote workforces grow exponentially in the wake of COVID-19. The shifting nature of the “workplace” requires employers to rethink many of their compliance obligations, including how to satisfy their obligation to inform workers of their statutory rights.
Prior to the pandemic, employee notices were traditionally posted in a break room or other high-traffic area of the workplace. With many employees now working from home, employers must find alternative ways to ensure that the notices are conveyed and their statutory obligations are satisfied.
The Department of Labor (DOL) recently issued a Field Assistance Bulletin that clarifies how employers can meet their notice requirements under several federal employment laws: 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). As noted in the guidance, the posting requirements vary under each law. For instance, the EPPA and FMLA require notices to be readily seen by both employees and applicants for employment.
The posting requirements also dictate how the notice must be delivered. The FLSA and FMLA require continuous posting, while the SCA and Section 14(c) allow employers to meet notice requirements by delivering individual notices to each employee. Below is a brief summary of the DOL’s guidance with respect to each requirement:
The Field Assistance Bulletin also emphasizes that any electronic notice must be as effective as a hard-copy posting, noting that the requirement that affected individuals be able to readily see a copy of the required postings, applies equally when an employer chooses to meet a worksite posting requirement through electronic means. According to the DOL, a determination of whether affected individuals can readily see an electronic posting depends on the facts. “For instance, the affected individuals must be capable of accessing the electronic posting without having to specifically request permission to view a file or access a computer,” the Field Bulletin states. “Consistent with its existing regulations, 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.”
Similarly, if the employer has not taken steps to inform employees of where and how to access the notice electronically, the DOL will not consider the employer to have complied with the posting requirement. “Posting 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,” the guidance states.
The Field Assistance Bulletin also addresses the specific requirements of the FLSA and the FMLA, which most employers must follow. Below are a few key points:
When employers are determining what type of notice posting is required, it is important to consider the regulatory requirements, as well as the nature of your workforce (i.e. completely remote or both onsite and offsite.) In addition, when providing notices electronically, employers must also ensure that they are posted in a location that employees will see and that employees known where to find them.
If you have any questions or if you would like to discuss the matter further, please contact me, Michael Sheppeard, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.
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