Federal law, as well as many state and local laws, require employers to display notices and posters in the workplace advising employees of their rights. With many employers operating remotely due to COVID-19, however, questions regarding these statutory posting requirements have arisen. In response, on December 29, 2020, the United States Department of Labor released guidance addressing the permissibility of providing the required postings through electronic means.
By way of background, no less than 15 federal laws, including the Fair Labor Standards Act, the Family and Medical Leave Act, and the Employee Polygraph Protection Act, require employers to display notices or posters in the workplace advising workers of their rights under such laws. Generally speaking, the notices or posters must be physically displayed in a conspicuous location that can be easily accessed by all employees (break rooms and cafeterias, for instance, are common locations for this).
However, the guidance addresses whether providing notice of these federal laws by electronic means can satisfy an employer’s posting obligations. The guidance distinguishes between notices that are required to be continually posted (meaning that they must be posted “at all times”) from those that must be delivered individually to each employee. The continuous posting requirement will only be met via electronic distribution to employees, where (1) all employees exclusively work remotely; (2) all employees customarily receive information from the employer via electronic means; and (3) all employees have readily available access to the electronic posting at all times. Conversely, for statutes requiring individual notice, e-mail delivery or another similar method of delivery will suffice.
Finally, employers who choose to distribute notices electronically must ensure that the systems used to do so (for example, an intranet or other internal website or file-sharing system), are as effective as a hard-copy posting. Employers using these methods of distribution must inform employees about where and how to access this information and ensure their employees are able to access the electronic notices without restrictions. In addition, employers with employees who work both onsite and remotely may supplement – but not replace – a hard-copy poster with an electronic notice.
Employers with fully or partially remote workforces should immediately ensure their compliance with notice requirements, based on this new guidance, and advise employees of where and how they can locate each required notice. If you have any questions about your obligations under the guidance, Reed Smith’s experienced Labor & Employment Group is ready to speak with you.