With many employers approaching their one-year anniversary of working from home, it is obvious that the COVID-19 pandemic has permanently changed both the way we work and where we work. An estimated 36.2 million Americans will be working remotely by 2025 – a staggering 87% increase from pre-pandemic levels. Surveys also show that business leaders plan to allow employees to work from home at least partially after their offices reopen. However, having a distant workforce presents a challenge for employers who must post certain notices and posters in their workplaces to inform workers of their rights under federal, state, and local labor laws.
In response to this widespread shift to remote working, the US Department of Labor released Field Assistance Bulletin No. 2020-7 (the “DOL Guidance”) on December 29, 2020, clarifying how employers comply with state reporting and posting requirements can be in a remote environment.
Employers should consider three key issues:
Post and Keep Up-to-date versus individual notices
The DOL guidelines distinguish between notifications that must be published on an ongoing basis (“bookings”) and those that must be made available to each employee individually (“notifications”). Under federal laws that require employers to publish bookings “at all times” (e.g. the Law on Fair Labor Standards and the Law on Family and Sick Leave), employers do not fulfill their notification obligations by simply issuing a one-off direct mail or other individual communication the employees. Rather, the DOL guidelines state that an electronic booking is only a sufficient substitute for an obligation to book if:
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ALL employees work exclusively from home;
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ALL employees usually receive information from the employer electronically; and
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ALL employees have access to the electronic booking at any time.
If an employer has some on-site employees and others work remotely full-time, the employer can supplement a printed booking with an electronic booking. In such circumstances DOL recommends both forms of publication.
Conversely, in the case of federal laws or regulations that require individual notifications, employers may comply with the notification requirement by e-mail or other electronic means, provided that this is the way that employees typically receive this information from the employer. This is in line with the existing DOL regulations, which only allow electronic delivery of the required messages if employees are already using this electronic communication on a regular basis.
Electronic bookings need to be just as effective as printed bookings
With regard to the posting requirements of the Federal Labor Office, the DOL guidelines offer a clear rule: an electronic posting, be it via an intranet site, a shared network drive or a file system posting, must be just as effective as a printed posting. A number of federal laws require employers to display postings where they can be easily seen by employees and applicants. These rules remain in full effect with respect to electronic bookings.
As explained in the DOL guidelines, employers must take reasonable steps to ensure that employees can access the electronic booking without expressly requesting permission to view the booking or access a computer. Posting a notice on a company website or intranet is only sufficient if the employer already regularly publishes similar posts in this way. As the DOL provides in the guidelines, posting on an unknown or little-known website is equivalent to posting a printed post in an inconspicuous location and does not meet federal requirements.
Finally, DOL reminds employers to take reasonable steps to inform workers where and how to access the necessary bookings to ensure compliance. Employees should be able to easily determine which electronic booking applies to them and their job site.
Don’t forget about state and local notification and publication requirements
Although the DOL guidelines only apply to state reporting and posting requirements, employers should be aware that many states and cities have additional reporting and posting requirements that they must also comply with. For example, the New York Department of Labor requires certain posters for minimum wage information, occupational health and safety, and the like. In California, employers are required to post information about medical and disability leave, minimum wage, and discrimination and harassment in the workplace. Should a state or local authority issue conflicting instructions regarding electronic notices and postings, employers should follow those guidelines with respect to the state and local notices and posters.
This post includes contributions by Cynthia J. Park.
© 2020 Epstein Becker & Green, PC All rights reserved.National Law Review, Volume XI, Number 8
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