COMPLIANCE UPDATE: DOL RELEASES ELECTRONIC POSTING GUIDANCE

Many federal and state employment laws require employers to post notices in the workplace telling employees about their rights under these laws. For example, the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) are two major federal laws requiring employers to do this. Traditionally, employers satisfied this compliance requirement by hanging posters in areas that are frequently visited by employees such as lunch rooms, entrances, and employee bulletin boards.

What happens when your workforce goes remote? Employers have wanted clarification on this question with so many employees now working remotely during the coronavirus pandemic. The Department of Labor recently released new guidance that details how employers can use electronic means to satisfy posting obligations.

Can electronic methods of posting be substituted completely? The guidance says: “Wage and Hour Division (WHD) will consider an electronic posting to be sufficient to meet the…requirements only if (1) all of the employer’s 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.”

This means that if any employee is working on-site, some of the time or part of the time, the employer still needs to post physical copies of the notices to be in compliance with the law.

However, DOL encourages employers to use both methods of posting: “Where an employer has employees on-site and other employees teleworking full-time…the employer may supplement a hard-copy posting requirement with electronic posting and the Department would encourage both methods of posting.”

What electronic methods can employers use? As stated in the guidance, the notices must be readily accessible to employees at all times. The DOL also clarifies that notices must be posted in an electronic location that employees are used to visiting and where they would expect to receive information. An employer would not be in compliance if:

• The notices are sent by email.
• They are posted on a website that employees rarely go to.
• Employees have to request permission to view the file.

Posting notices on a company intranet, website, or human resources portal is in compliance with the law as long as the employer regularly uses that platform for sharing information with employees and tells employees that the notices are located there.

One thing to note is that DOL’s guidance applies only to laws that are administered through its agencies, including the Occupational Safety and Health Administration (OSHA). The guidance does not apply to posting requirements managed by other agencies, such as the Equal Employment Opportunity Commission and National Labor Relations Board.

DOL’s FirstStep Poster Advisor helps employers navigate posting requirements under federal law, and they should also review posting requirements for state-specific employment laws.

Employers looking for more personalized, year-round compliance support may want to consider partnering with a human resources outsourcing company. The Anthros team sends employment law posters directly to each client worksite and distributes electronically through its secure, online Employee Portal to ensure clients remain in compliance with posting requirements.

To learn more about how Anthros helps clients navigate regulatory compliance, get in touch with our team.