On December 23, 2020, the Department of Labor released guidance regarding whether forms of electronic notice will satisfy an employer’s requirement to provide remote employees with notices of their statutory rights.
As more employees work remotely due to the COVID-19 pandemic, employers questioned how to comply with the employee notice requirements under federal, state, and local laws. For employers with remote employees, a bulletin board in the break room or main office covered with required notices or a trip to Human Resources for a hard copy is no longer practicable. In an attempt to provide remote employees with the required notices, employers utilized email or postings on an internet or intranet website, including shared network drive or file system.
The DOL has advised that in most cases, these forms of electronic notices will supplement, but not replace, the statutory and regulatory requirements that an employer post a hard-copy notice. The DOL notes that whether notices are provided electronically or in hard copy, it is the employer’s responsibility to provide employees with the required notices. In the DOL’s Field Assistance Bulletin, the DOL distinguishes between the requirements of continuous and individual notices.
Certain statutes, such as the Fair Labor Standards Act (“FLSA”) and the Family Medical Leave Act (“FMLA”) require employers to “post and keep posted” or require the posting of a notice “at all times.” A direct mailing or a single notice to employees will not fulfill this requirement for employers.
An electronic posting for a statue that requires continuous notice will suffice only where (1) all the employer’s employees work remotely, (2) all employees customarily receive information from the employer via electronic means, and (3) all employees always have readily available access to the electronic postings.
Employees with a hybrid teleworking program (some employees work remotely, and some employees remain in the office) may supplement a hard copy posting requirement with an electronic posting.
Other notices required by statutes such as the Service Contract Act (“SCA”), which applies to contractors and subcontractors, and Section 14(c) of the FLSA, referring to minimum wage certificate posters, may be satisfied by delivering individual notices to each employee. This delivery can be done electronically (via email or a similar method of electronic delivery), only if an employee customarily receives information from the employer electronically.
If an employer utilizes an electronic posting through an internet website, an intranet site, or a shared network drive or file system posting, the electronic notice must be as effective as a hard copy. Remote employees must be able to readily see a copy of the required postings in the electric format. For example, employees must be able to access the electronic posting without having to request permission to view a file or access the folder. Employers must inform employees on where and how to access these notices electronically.
Consistent with the regulations for continuous and individual notices, these methods of electronic postings will not satisfy notice requirements if an employer does not customarily post notices to remote employees electronically.
Employers need to create an electronic system, such as a website or shared network drive, for remote employees to view required notices. Employees can be informed of the virtual location of these electronic postings through an acknowledgement in their employee handbook or teleworking arrangement, or a communication to all employees.
The DOL’s guidance only applies to federal notice and posting requirements. Employers should check with state and local laws to make sure they comply with their required postings on a federal, state, and local level. For example, New York’s Department of Labor requires posting additional employee notices including but not limited to minimum wage information, job safety and health, and workers’ compensation and disability benefits.