With more employees working remotely as a result of the COVID-19 pandemic, employers must modify their practices to support these arrangements, which includes complying with workplace poster requirements. The U.S. Department of Labor (DOL)'s Wage and Hour Division (WHD) recently published guidance on meeting poster requirements for remote workers. Here is some background on federal poster requirements and key takeaways from the DOL's guidance.
Background:
The WHD enforces poster requirements under 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).
FLSA poster:
Generally, all employers must post and keep posted a notice explaining the FLSA in a conspicuous place in all of their establishments so employees may readily read it.
FMLA poster:
All employers with 50 or more employees must display a notice explaining the provisions of the FMLA and informing employees how to file a complaint with the WHD if the employer violates the law. The notice must be displayed in a conspicuous place where employees and applicants for employment can see it. Where the employer's workforce is comprised of a significant portion of workers who are not literate in English, the employer is required to provide the notice in a language in which the employees are literate.
EPPA poster:
Generally, all private employers must post a notice explaining the EPPA. The notice must be posted in a prominent and conspicuous place in every establishment where it can readily be observed by employees and applicants.
SCA poster:
All contractors and subcontractors subject to the SCA are required to notify employees of the required compensation and fringe benefits by using the "Employee Rights on Government Contracts" notice and any applicable wage determination. This notice may be delivered to each employee or posted in a prominent and accessible place at the worksite where it may be seen by employees performing work on the contract.
Other federal posters:
There are several other federal poster requirements that are enforced by other departments within the DOL or other agencies, such as the Occupational Safety and Health Administration or the Equal Employment Opportunity Commission. A few of these additional requirements are outlined below:
- OSHA poster: All employers covered by the federal Occupational Safety and Health Act must display the "Job Safety and Health: It's the Law" poster. Employers in states with an approved state plan may also be required to post a state version of the poster.
- USERRA poster: Employers with individuals covered by the Uniformed Services Employment and Reemployment Rights Act must post the notice entitled "Your Rights Under USERRA" where employer notices are customarily placed, mail it, or distribute it via email.
- EEO poster: Employers with 15 or more employees must post a notice describing the federal laws prohibiting employment discrimination based on race, color, sex, national origin, religion, age, equal pay, disability and genetic information.
Note: The guidance below covers the poster requirements under the FLSA, FMLA, EEPA, and SCA and may not apply to the OSHA, USERRA, and EEO posters. Additionally, state and local laws may have different rules for their required postings.
WHD guidance:
Here are some key takeaways from the WHD's guidance on meeting poster requirements for remote workers:
#1: Rules differ based on whether all or some employees are working remotely.
According to the guidance, given that the FLSA, FMLA, and EPPA require employers to post/display and keep posted/displayed the notice (continuous posting), an employer may use electronic means to post the notice as a substitute to the hard copy notice only if all employees:
- Exclusively work remotely;
- Customarily receive information from the employer via electronic means; and
- Have "readily available access" to the electronic posting at all times, such as via an internal or external website or a shared network drive or file system. Simply emailing these notices to employees wouldn't comply with the guidance.
If all hiring is done remotely and applicants communicate with the employer via electronic means, an employer may satisfy the FMLA and EPPA posting requirements for these individuals by posting the notices on an employee information internal or external website that's accessible at all times to applicants.
If the employer has some employees on-site and other employees working remotely, the employer must post the hard copy of the FLSA, FMLA (if applicable), and EPPA notices in the workplace and is encouraged to post them via electronic means for remote employees.
#2: Electronic notice must be as effective as hard copy notice.
If using electronic means, the electronic notice must be as effective as a hard copy posting. For instance, the employees (and applicants if applicable) must be capable of accessing the electronic posting without having to specifically request permission to view a file or access a computer.
#3: Employers must inform workers where and how to access the electronic posting.
If using electronic means, the employer must inform employees (and applicants if applicable) of where and how to access the notice electronically. Additionally, the individuals must be able to easily determine which electronic posting is applicable to them and their worksite.
#4: Individual notice under the SCA has separate rules.
As outlined above, the SCA notice may be delivered to each employee or posted in a prominent and accessible location. If the employer chooses the former, the notice requirements may be met via email delivery (or another similar method of electronic delivery) only if the employee customarily receives information from the employer electronically.
Conclusion:
Ensure that you comply with all applicable federal, state, and local poster requirements for on-site and remote workers.