Federally Mandated Employment Notices for Remote Workers

The COVID-19 pandemic obviously brought many changes to the ways we live and work. One change that is likely to endure post-pandemic is more employees working remotely. The pandemic forced many to embrace remote work arrangements and some employers have declared that at least some remote work will continue indefinitely.

Among the challenges inherent in managing remote work arrangements is compliance with the posting and notice requirements of federal employment laws. For example, employers subject to the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), the Employee Polygraph Protection Act (EPPA), or the Service Contract Act (SCA) are required to physically post or provide notice of these laws in a “conspicuous” manner.

Pre-pandemic, employers typically satisfied these requirements by placing posters in break rooms or other commonly used areas. But providing effective notice to employees working remotely is not as simple. To help address this issue, in DOL Field Assistance Bulletin No. 2020-7 (FAB 2020-7), the United States Department of Labor (DOL) recently provided guidance on how employers can satisfy posting requirements electronically.

Continuous Postings v. Individual Notices

FAB 2020-7 draws a distinction between federal laws that require employers to post notices continuously (e.g., the FLSA, FMLA, and EPPA) and those that require employers to provide one-time, individual notices (e.g., the SCA and Section 14(c) of the FLSA).

For one-time, individual notices, an employer may provide notice “via email delivery” or “another similar method of electronic delivery,” provided the employee customarily receives information from the employer by that means.

For laws that require continuous posting, physical posting in the workplace may be supplemented by electronic notice, but physical posting is still required, unless (1) all employees only 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. If any one of these conditions is not met, the employer still must post the required notice in a conspicuous manner in the workplace. In that event, DOL “encourages” electronic posting in addition to physical posting.

Access to Electronic Notices

Employers seeking to comply with posting requirements by electronic notice must keep in mind that sufficient “access” to the notice is essential for compliance. DOL requires electronic notices to be “as effective as a hard-copy posting,” which means employees must be “able to readily see a copy of the required postings . . . without having to specifically request permission to view a file or access a computer.”

FAB 2020-7 provides some examples of what DOL will consider to be inadequate access. For example, posting a notice on a website or intranet is insufficient if the employer does not “commonly post notices” to employees or others electronically on its website or in its intranet. Similarly, posting will be deemed inadequate if it is made in an “unknown or little-known electronic location.” In addition, regardless of the electronic location, employers must inform employees how to access notices and enable employees easily to identify which postings apply to them.

Compliance Considerations

FAB 2020-7 provides that whether an employer achieves compliance with electronic posting requirements “depends of the facts” of each case. While each employer’s situation is unique, there are some common considerations for employers to bear in mind:

• Employers first must determine which federally mandated notice requirements apply to them. Employers who are unsure about which posting requirements apply can use DOL’s helpful FirstStep Poster Advisor tool, which is available at https://webapps.dol.gov/elaws/posters.htm.
• For continuous posting requirements, employers should consider whether they satisfy all three conditions for electronic-only posting. If not, physical posting in the workplace remains required, although additional, electronic notice is encouraged.
• For one-time individual notice requirements, employers should consider the ways they regularly communicate with employees and whether any of them is appropriate for providing notice.
• If the employer has a website and/or intranet, employers should consider to what extent employees regularly access it and whether other notices commonly are provided there.
• If an employer must post multiple electronic notices, it should consider how employees can easily identify which laws are applicable to them.
• Whether it be via a click-wrap form, in a handbook, or electronic signature, employers should consider if they want to document that notice was received by employees.
• Employers must keep in mind that FAB 2020-7 applies only to laws that the DOL enforces, and that there may be other federal, state, or local requirements to consider.