On December 23, 2020, the Department of Labor’s Wage and Hour Division issued guidance – Field Assistance Bulletin 2020-7 – regarding the use of electronic means to provide employees with required notice of their statutory rights under federal law.
Numerous federal statutes, including the FMLA and FLSA, require covered employers to “post and keep posted” notices for employees of their rights under each applicable law. This generally requires covered employers to display an explanatory poster in a workplace common area, employee break room, or another frequently visited space on the worksite. In addition, covered employers must provide all employees with the same information contained on the applicable poster in an employee handbook or other written material. Covered employers who willfully violate these posting requirements are subject to civil penalties. These posting requirements have been complicated by the pandemic, especially for employees who are working remotely on a permanent basis.
Field Assistance Bulletin 2020-7 provides that a covered employer’s continuous posting requirement may be fulfilled by an electronic posting in certain situations. Electronic notice will meet the continuous posting requirement if 1) all employees exclusively work remotely, 2) all employees regularly receive information from the employer via electronic means, and 3) all employees have readily available access to the electronic posting at all times. Employers must inform employees of where they can access the posting and how to access it. Further, the electronic posting must be as effective as traditional hard copy posting. For example, posting the notice in a little-known electronic location will be treated like posting a hard copy poster in an infrequently visited location such as a basement. Employees must also be able to access the internet website, intranet site, or shared file system where the posting is located without needing permission to access it. In general, the DOL recommends that employers use electronic means to supplement rather than replace hard copy notice of statutory rights.
The attorneys at Fishel Downey Albrecht & Riepenhoff, LLP regularly assist employers with a range of compliance matters. If you have any questions about this or any other matter, please contact us at info@fisheldowney.com or call 614-221-1216.