Electronic Posting of Required Workplace Notices? The DOL Provides Guidance

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In our “new normal,” the U.S. Department of Labor is dealing with how to help employers comply with legal obligations under laws that never contemplated these conditions. The Wage and Hour Division of the DOL has just issued a Field Assistance Bulletin (FAB) No. 2020-7 that provides guidance on the issue of whether required workplace postings under various employment laws may be done electronically.

As employers know, certain employment laws require employers to post notices in places where employees and applicants can readily view them. The DOL enforces the following: the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), Section 14(c) of the FLSA (dealing with subminimum wage certificates), the Employee Polygraph Protection Act (EPPA), and the Service Contract Act (SCA). Many of the older laws and regulations contemplated only a physical posting in the workplace, whereas more recently issued or revised regulations acknowledged the growing remote workforce. With the pandemic, many workforces suddenly became largely or wholly remote, and some employers questioned how to meet the mandatory posting requirements.

The WHD notes that the FLSA and FMLA require “continuous posting,” meaning that the posting is required “at all times” and delivery of a single notice, whether in hard copy or electronically, does not meet this requirement. If continuous posting is required, the WHD says that electronic posting in lieu of hard copy posting is acceptable only where:

  • all of the employer’s employees exclusively work remotely,
  • all employees customarily receive information from the employer via electronic means, and
  • all employees have readily available access to the electronic posting at all times.

An electronic posting may be made on an intranet site, internet website, or shared network drive or file system posting – but it must be at least as effective as a hard copy posting to allow the employees to readily see the posting. This is a fact-specific inquiry. Moreover, employers must customarily post notices electronically in order for such posting to be deemed effective. And they must specifically inform employees of where and how to access the electronic posting. In addition, the employee must be able to readily determine which electronic posting is applicable to them and their worksite.

If individual notices are permitted, the employer may use email only if it customarily provides employees with information by that method.

If an employer’s workforce is both in person and remote, the employer must post a hard copy in the workplace, but the WHD also encourages them to supplement it with an electronic posting. In the context of the pandemic, any employer with a physical workplace – even if most or all workers are temporarily remote – should continue to make the hard-copy posting in the workplace, but may also use electronic posting to ensure that employees are adequately informed of their rights and obligations under the applicable employment laws.