At the height of the COVID-19 pandemic, the U.S. Department of Labor (DOL) issued a field assistance bulletin regarding electronically posted notices of the:
- Fair Labor Standards Act (FLSA)
- Family and Medical Leave Act (FMLA)
- Employee Polygraph Protection Act (EPPA)
- Services Contract Act (SCA)
Issued Dec. 29, 2020, the bulletin is meant to give staff of the DOL’s Wage and Hour Division guidance about enforcement policy.
“In most cases, these electronic notices supplement but do not replace the statutory and regulatory requirements that employers post a hard-copy notice,” reads a portion of the bulletin. “Whether notices are provided electronically or in hard-copy format, it is an employer’s obligation to provide the required notices to all affected individuals.”
Still, with hybrid work environments apparently here to stay, companies are probably asking themselves, “Are electronic labor law posters compliant?”
Compliance and Digital Labor Law Postings
Some federal postings require employers to “post and keep posted” notices at all times.
In those cases, federal officials will only consider digital postings an “acceptable substitute” under certain conditions:
- All employees exclusively work remotely
- All employees customarily receive information from the employer via electronic means
- All employees have easy access to the electronic posting at all times
If an employer has both on-site and off-site workers, companies may supplement hard-copy postings with the digital variety. The DOL encourages businesses to use both methods.
When it comes to postings that require employers to provide individual notices to employees, electronic delivery will meet the requirements so long as workers customarily receive company information electronically.
Remote Workers and Electronic Labor Law Postings
For employers looking to meet labor law posting requirements through their intranet (or similar means), the electronic version must be “as effective” as the physical copy, according to the bulletin.
That means employees must be able to access the posting as easily as they would if they were working on site. With many businesses having both on-site and off-site workers, companies have turned to their intranet to keep employees informed of new and updated labor law postings.
And having a strong system in place is part of the compliance factor.
“As a practical matter, a determination of whether affected individuals can readily see an electronic posting depends on the facts,” reads the bulletin. “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.”
Employers should inform workers of where and how to access digital labor law postings. It follows the general rules for physical postings — they must be displayed in a conspicuous place, albeit electronically.
Lastly, digital labor law postings won’t be sufficient if workers cannot easily identify which postings apply to them and their place of employment, according to the bulletin.
A new hybrid and remote work situation has created many issues for large employers, including how to maintain compliance with labor law posters.
While the field assistance bulletin from the DOL provides some guidance for federal postings, there are scores of smaller jurisdictions that issue labor law postings, as well. Employers may want to review their policies and procedures to ensure employees have access to the required postings in specific locations.
This Employment Law News blog is intended for market awareness only, it is not to be used for legal advice or counsel.