Updated Guidance: Remote Workforces Still Have Posting Requirements

As the global coronavirus continues, many workplaces still participate in a remote workforce. In fact, according to Upwork, by 2025, an estimated 36.2 million Americans will be working remotely (pandemic or not). This is an 87% increase from pre-pandemic levels. In response to the increase, the U.S. Department of Labor (DOL) has issued a Field Assistance Bulletin (Bulletin). Known as No. 2020-7, the Bulletin clarifies how to comply with federal notice and posting requirements in a remote environment. The following blog post addresses the two main points of the December 29th, 2020, Bulletin. It builds on information included in a similar blog post released in August 2020.

Postings vs. Notices

The Bulletin distinguishes between required posted items (postings) and required items provided once to individuals (notices). Some federal laws require employers to post postings “at all times.” This, for example, includes both the Fair Labor Standards Act and Family and Medical Leave Act.  According to the DOL, employers will not fulfill notice obligations with a one-time single notice to employees in these situations. Instead, the Bulletin states that an electronic posting would be a sufficient substitute for the posting requirement. This, however, would only be applicable if all employees:

• work exclusively from home;
• customarily receive information from the employer electronically; and
• have readily available access to the electronic posting at all times.

In some cases, an employer might have some employees on-site and others are working remotely on a full-time basis. In that situation, the employer may supplement a hard-copy posting with an electronic posting. The DOL Bulletin, however, encourages both forms of the posting under those circumstances. On the other hand, for federal statutes or regulations requiring individual notices, employers may satisfy requirements by electronic delivery. This, however, must be a continuing event and employees must customarily receive notices electronically either prior or from then on. The information in the Bulletin regarding notice requirements is consistent with already existing DOL regulations.

Effectiveness of Postings

According to the Bulletin, an electronic posting must be as effective as a hard-copy posting. For instance, some federal laws require employers to display postings where they can be readily seen by employees and applicants. Such rules are also in full effect when dealing with electronic postings. The Bulletin explains that employers must take reasonable steps to ensure employees are capable of accessing the electronic posting. The access has to occur without having to specifically request any permission to view the document or access a computer. Posting a notice on a company website or intranet is not sufficient unless similar postings occur on a regular basis. Furthermore, the Bulletin states that posting on an underutilized website is like posting a hard-copy version in an inconspicuous location. Consequently, the electronic posting would not meet federal requirements. Finally, the DOL reminds employers to inform workers of where and how to access required postings to remain in compliance. Employees should be capable of easily determining which electronic posting applies to them and their worksite.

Employer Takeaways

According to law firm Epstein, Becker, & Green, many states and cities also have notice and posting requirements. Employers must comply with those laws in addition to any applicable federal requirements. Failure to comply to federal, state, and local posting and notice requirements could lead to costly fines and lawsuits. Personnel Concepts' Digital Comply Anywhere Poster (CAP) Subscription is a state-specific compilation of required state and federal labor law posters and notices designed for employees that do not have access to a traditional workplace.  Click here for more information.