Where Should Employers “Post” Required Notices for Remote Workers?

The shifting nature of the “workplace” requires employers to rethink many of their compliance obligations...

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.

DOL Guidance on Telecommuting and Posting Requirements

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:

• Continuous Posting: If a statute and its regulations require a notice to be continuously posted at a worksite, in most cases, the DOL will only consider electronic posting an acceptable substitute for the continuous posting requirement where the following requirements are met: (1) all of the employer’s employees exclusively work remotely, (2) all employees customarily receive information from the employer via electronic means, and (3) all employees have readily available access to the electronic posting at all times. According to the guidance, this “ensures the electronic posting satisfies the statutory and regulatory requirements that such postings be continuously accessible to employees.” For employers with some employees who work on site and some who telecommute, the DOL advises employers to supplement a hard-copy posting requirement with electronic posting.
• Individual Notices: Where particular statutes and regulations permit delivery of notices to individual employees, the notice requirements may be met via email delivery (or another similar method of electronic delivery), only if the employee customarily receives information from the employer electronically.

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:

• FMLA: The FMLA regulations permit electronic posting of the general FMLA notice as long as the electronic posting otherwise meets the regulatory posting requirements, which require each employer covered by the FMLA to post and keep posted, in conspicuous places on the premises where employees are employed a general notice explaining the FMLA’s provisions and providing information concerning the procedures for filing complaints of violations of the FMLA with the DOL. The regulations further provide that the notice must be posted prominently where it can be readily seen by employees and applicants for employment, and the poster and text must be large enough to be easily read and contain fully legible text. The Field Bulletin advises that the DOL will consider electronic posting to satisfy the FMLA posting requirements where, for example, all hiring and work is done remotely and an employer posts the appropriate FMLA notice on an internal or external website that is accessible to all employees and applicants. “In this circumstance, where there is no physical establishment where employees are employed or where interviewing or hiring takes place and the electronic posting is accessible to employees and applicants at all times, WHD will consider such electronic posting to meet the regulatory requirements that the notice be posted in a conspicuous place where employees are employed so as to permit employees and applicants to readily observe a copy,” the guidance states.
• FLSA: Employers with workers subject to the FLSA’s minimum wage, overtime, or Break Time for Nursing Mothers provisions are required to post and keep posted a notice explaining the FLSA in conspicuous places in every establishment where such employees are employed so as to permit them to observe readily a copy. According to the DOL, it will consider an electronic posting to be sufficient to meet the above requirements only if (1) all of the employer’s employees exclusively work remotely, (2) all employees customarily receive information from the employer via electronic means, and (3) all employees have readily available access to the electronic posting at all times. “For example, where all employees exclusively work from home and communicate with the employer through electronic means, an employer may satisfy the FLSA posting requirements by posting the required FLSA notice on an employee information internal or external website, or shared network drive or file system that is accessible at all times to all employees,” the guidance advises.

Key Takeaway for Employers

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 questions, please contact us

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.