Citing a rise in the use of electronic communications in the workplace and an increase in the number of employers providing documents to employees electronically, the U.S. Department of Labor’s Wage and Hour Division issued a Field Assistance Bulletin (FAB) on March 15, 2019 providing guidance on acceptable ways to notify employees electronically of plans to hire foreign workers.
LCA Posting Requirement
The Immigration and Nationality Act and H-1B regulations require an employer to notify all affected employees of its intent to hire H-1B nonimmigrant workers.1 Affected employees are those at the same worksite, in the same occupational classification as the prospective H-1B worker, and also include individuals employed by a third-party employer.2 This requirement, which is commonly referred to as the “Posting Requirement,” informs U.S. workers of the terms of the H-1B workers’ employment, as specified on the Labor Condition Application (LCA). It is intended to protect U.S. workers by informing them of their right to examine certain documents and to file complaints if they believe that violations have occurred.
H-1B regulations provide that the required notification must occur in one of three ways: (1) by posting a hard-copy notice; (2) via electronic notification; or, when applicable, (3) by providing notification to a collective bargaining representative.3 The DOL’s new guidance makes clear that no matter which method employers use, they must ensure that the notification is readily available to all affected employees. This may require employers to evaluate their current LCA posting practices at their worksites, including those of third-party employers that place H-1B workers at their worksites.
Electronic Notification to Affected Workers
Regulations provide that an employer may accomplish electronic notice by any means it ordinarily uses to communicate with its workers about job vacancies or promotion opportunities. This includes posting the notice on a “home page” or “electronic bulletin board” for those who have, as a practical matter, direct access to those resources, or through email or an actively circulated electronic message, such as the employer’s newsletter.4 Alternatively, the employer must notify via hard-copy posting if affected employees lack practical computer access, which includes, for example, not having the correct permission to visit a company intranet site and/or lacking knowledge of the electronic resource where the notice is posted.
The DOL’s new guidance clarifies that if an employer has not taken steps to make affected employees aware of the existence or location of the electronic notification, then the employer has not complied with the Posting Requirement. The agency notes, “Posting on an unknown or little-known electronic location has the effect of hiding the notice, similar to posting a hard-copy notification in an inconspicuous place, such as a custodial closet or little-visited basement.”
Additionally, the DOL has taken the position that electronic notice is insufficient if it is posted in an electronic location known to or used by the H-1B petitioner’s own employees, but not known to or used by employees of a third-party employer. Even when the affected third-party employee can visit an electronic resource, if the individual does not know to visit the electronic resource, then the notification is not readily accessible under this guidance. Moreover, the affected employees must be able to determine which electronic notice applies to their specific worksites in order for the notice to be sufficient.
In today’s environment of heightened regulatory enforcement, especially in the area of foreign labor, H-1B employers and those who have H-1B workers assigned to their worksites should be sure to review their LCA posting practices for compliance.