In response to the widespread shift to remote workforces due to the COVID-19 pandemic, the Department of Labor (DOL) has issued guidance to clarify how employers can comply with federal laws requiring the display of certain notices in the workplace that inform employees about their rights under federal employment law.
Field Assistance Bulletin No. 2020-7 was issued on December 29, 2020, to give guidance on permissible electronic posting of required workplace notices. The DOL guidance applies to postings required under 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). It does not address posting requirements enforced by other federal agencies or state-required posting directives.
Continuous Postings vs. Individual Notices
The guidance states that for employers required to “post and keep posted” certain postings required by federal regulations, including the FLSA and FMLA, an employer does not fulfill their statutory obligations by issuing a single notice to employees. An electronic posting is only permitted as a sufficient substitute for a posting requirement if:
- 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.
When an employer has employees working both on-site and remotely on a full-time basis, the employer is permitted to supplement a hard-copy posting with electronic posting, a practice the DOL encourages.
For individual notices – those that are required to be provided once to each employee individually – the DOL guidance states that employers may use email or other electronic delivery method only if the employee “customarily receives information from the employer electronically.”
Efficacy of Electronic Postings
The guidance states that electronic postings – whether by intranet site, Internet website, or shared network drive or file system – must be as effective as hard-copy postings. Since a number of federal laws require postings to be readily seen by employees, the same requirements still apply to electronic postings. Employers are required to take reasonable measures to ensure employees can access an electronic posting without having to request permission to view the posting or access a computer. According to the DOL guidance, posting on “an unknown or little-known electronic location” has the same effect as hiding the posting and is therefore insufficient. Employees must be informed about how and where to access the electronic posting in order to fully comply with the posting requirement.