- Electronic posting may be a sufficient substitute to a continuous-access worksite posting under the Family and Medical Leave Act (FMLA) and Fair Labor Standards Act (FLSA) under certain conditions;
- Exclusively relying on electronic posting is only permissible where the entire workforce works remotely;
- Electronic postings must be “as effective as” a hard-copy version of the posting;
- Employers must take steps to inform employees of the location of the notices and provide easy access;
- If an individual cannot easily determine which electronic posting is applicable to them and their worksite, the electronic posting will be considered insufficient.
The U.S. Department of Labor (“DOL”) released guidance in the form of a Field Assistance Bulletin (“FAB”) in response to the ongoing COVID-19 pandemic and how employers can electronically satisfy federal workplace poster obligations under the Fair Labor and Standards Act (“FLSA”) and Family and Medical Leave Act (“FMLA”), among other regulations. Employers should note this guidance does not apply to notices required by the Employee Retirement Income Security Act of 1974 (“ERISA”). This article reviews what we have learned from the FAB guidance.
The FLSA and FMLA do not permit employers to meet their notice obligations through a direct mailing or other single notice to employees. Instead, employers must post a notice and “continuously” keep it posted. The DOL FAB guidance suggests that if a statute requires “continuous posting,” the DOL will consider electronic posting as an acceptable substitute if the following circumstances are met:
- All the employer’s employees exclusively work remotely;
- All employees customarily receive information from the employer via electronic means; and
- All employees have readily available access to the electronic posting at all times.
The DOL provides the following example:
Where all employees exclusively work from home and communicate with the employer through electronic means, an employer may satisfy the FLSA posting requirements by posting the required FLSA notice on an employee information internal or external website, or shared network drive or file system that is accessible at all times to all employees. In this circumstance, where there is no physical establishment where employees are employed and employees can access the electronic posting at any time, [DOL] will consider such electronic posting to meet the regulatory requirements that the notice be posted in a conspicuous place where employees are employed so as to permit them to readily observe a copy. FAB 2020 No. 2020-7
Electronic Notice Must be “as Effective as” the Physical Copy
If an employer seeks to meet a worksite posting requirement through electronic means, the electronic notice must be as effective as a hard-copy posting. This means that an individual must be able to readily view a copy of the required postings. While the determination of whether an electronic notice is “as effective” as a physical notice will be fact specific, the DOL has provided the following insight to assist employers:
- Individuals must be capable of accessing the electronic posting without having to specifically request permission to view a file or access a computer;
- The DOL will not consider electronic posting on a website or intranet to be an effective means of providing notice if an employer does not customarily post notices to affected employees electronically;
- If an employer has not taken steps to inform employees of where and how to access the notice electronically, the DOL will not consider the employer to have complied with the posting requirement;
- Posting on an unknown or little-known electronic location has the effect of hiding the notice and is not sufficient;
- If individuals cannot easily determine which electronic posting is applicable to them and their worksite, the DOL will consider the posting insufficient.
It is important to note that this electronic posting guidance applies only to the statutes specified in the FAB and does not authorize electronic posting under employment statutes enforced by other agencies (e.g., EEOC or state law). Here are some considerations for employers that would like to use electronic compliance with required notices under the FMLA and FLSA:
- Consider using on-boarding materials, such as a handbook, to inform employees about electronic notices and the location of any required notices;
- Set aside space on your company intranet or portal that is easily accessible to all employees;
- Identify which postings are applicable to employee groups that may be covered by different laws and ensure it is clear which posting apply to which employee groups.
- Field Assistance Bulletin No. 2020-7
- Fair Labor and Standards Act
- Family and Medical Leave Act
- U.S. Department of Labor – Wage and Hour Division
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