As HR professionals, we are no strangers to the posters and signs that are required by law that adorn our common areas. But how do you post such notices for remote workers? And can you remove the physical posters and post the required notices electronically? The Department of Labor’s Wage and Hour Division recently issued a second piece of guidance. This one has to do with employers’ posting duties for the bodies of law they oversee, which include the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), Section 14(c) of the FLSA (Section 14(c)), the Employee Polygraph Protection Act (EPPA), and the Service Contract Act (SCA). Let’s discuss what you should know and some other important changes specific to Arizona employers.
“Post and Keep Posted” Requirements
Many statutory requirements relative to posting of notices contain “post and keep posted” or “post at all times” requirements (collectively, let’s call these employers’ “continuous posting requirements”). Employers seeking to use electronic postings to meet their continuous posting requirements must meet the following factors:
- all of the employer’s employees must exclusively work remotely;
- the employer’s employees must customarily receive information from the employer via electronic means; and
- all employees must have readily available access to the electronic postings at all times.
As you can see, employers with both on-site and remote work workers cannot take advantage of a fully electronic notice system.
Individual Notice Requirements
For those statutes that require employers to provide employees with individual notice, DOL advises employers that they can deliver such notices via email so long as the employee customarily receives electronic information via email from the employer. If this is not the case, the employer cannot avail itself of electronic delivery.
Employers must provide their employees access to all required notices. The guidance allows employers to, under certain circumstances, meet the access requirement electronically. Whether or not the access is sufficient is a fact-intensive inquiry. Some important factors to consider are:
- The employees must be capable of accessing the electronic posting on their own and without having to specifically request permission to view a file or access a computer.
- As a practice, employers must customarily post notices in an electronic fashion.
- Employers must take steps to educate employees where to access the notices.
- Employees must be able to easily ascertain which notices apply to them and their respective workforces.
As you can tell, there is an overarching concern as to displaying notices solely in electronic form. Accordingly, employers still operating brick and mortar and who have some employees reporting to the workplace cannot avail themselves of an electronic-only means of providing notice. That said, I imagine the old-school signs posted in common areas are not going fully do the trick either. Employers should utilize both electronic and traditional posting methods. And communicate to their workforce. Often.
A Special Note to Arizona Employers: Understandably this was not discussed in the guidance but since we’re discussing posters, I wanted to remind all my Arizona employers that they must update their minimum wage poster by January 1, 2021 to reflect the new minimum wage changes.
About the Author: Alejandro Pérez is a partner at Jaburg Wilk. Fully bilingual, Alejandro assists employers of all sizes with labor and employment law issues. In addition to representing clients in litigation, Alejandro provides advice and counsel on HR decisions; conducts sensitive workplace investigations; drafts and reviews employment policies, handbooks, and agreements; and trains workforces on a variety of aspects of employment law.
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