In acknowledgment of the increased number of employers now managing a workforce remotely, the U.S. Department of Labor recently issued guidance regarding the electronic posting of notices required by certain federal statutes. Specifically, alternative means for employers to satisfy the notice requirements of the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), the Employee Polygraph Protection Act (EPPA) and the Service Contract Act (SCA) to name a few.
Continuous Posting: In order to comply with statutes such as the FLSA and FMLA that require continuous posting (direct mailing or single notice fail to satisfy the requirements) electronic posting will be considered compliant provided the following are satisfied:
- All employees are exclusively working remotely;
- All employees customarily receive information from the employer electronically; and
- All employees have readily available access to the electronic posting at all times.
Where an employer has employees both on-site and working remotely full-time, the employer is encouraged to post both a hard copy of the notice as well as to provide the notice electronically.
Individual Notice: For statutes such as the EPPA and the SCA that permit compliance via the delivery of individual notices to employees, the requirement can be satisfied via email delivery so long as the employee customarily received information from the employer electronically.
Access: Existing requirements that employees be able to readily access notice postings continue to apply to electronic notices. Employers who choose to post using an intranet site, internet website, or shared network drive or file system posting should consider the following:
- Employees must be able to access the electronic posting without having to request specific permission to view a file or access a computer
- Employers must have a history/custom of posting other notices to employees electronically
- Notices may not be posted on unknown or little-known electronic locations
- Employees must be able to easily determine which electronic postings apply to them and their worksite
Meredith S. Campbell
Chair, Employment and Labor Group
Co-Chair, Corporate Investigations, Governance and Risk Management T(301)255-0550, Employment and Labor Group
