With the number of employees working remotely at an all time high, the Wage and Hour Division ("WHD") of the U.S. Department of Labor recently published guidance regarding the posting of required employee notices under several federal laws.
The guidance distinguished between two types of required notices: (1) notices that are required to be continuously posted at the worksite; and (2) notices that can be sent directly to individual employees.
For example, the Fair Labor Standards Act requires an employer employing any employees subject to the FLSA’s minimum wage, overtime, or Break Time for Nursing Mothers provisions to post and keep posted a notice explaining the FLSA in conspicuous places in every establishment where such employees are employed. The Family and Medical Leave Act requires each covered employer to post and keep posted, in conspicuous places on the premises where employees are employed, a general notice explaining the FMLA’s provisions and providing information concerning the procedures for filing complaints.
In most of these cases, the WHD will only consider electronic posting an acceptable substitute for the continuous posting requirement where (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.
If an employer seeks to meet a worksite posting requirement through electronic means, such as on an intranet site, internet website, or shared network drive or file system posting, the electronic notice must be as effective as a hardcopy posting. Furthermore, employers must take steps to inform employees of where and how to access the notice electronically.
If an employer has some employees on-site and others teleworking full-time, the employer may supplement a hardcopy posting requirement with electronic posting and the WHD encourages both methods of posting.
Other federal statutes, such as Section 14(c) of the FLSA and the Service Contract Act, permit delivery of notices to individual employees and are not required to be continuously posted at worksites. Where particular statutes and regulations permit delivery of notices to individual employees, the notice requirement may be met via email delivery (or another similar method of electronic delivery) only if the employee customarily receives information from the employer electronically.
Employers with questions are advised to consult with their legal counsel regarding specific questions or concerns. If you have any questions, or need assistance, please feel free to contact Jeremy D. Iosue or Jason T. Hartzell at (216) 651-0451.
This Employment Law Alert may provide an overview of specific federal and/or state laws and regulations. It is not intended to be, and should not be construed as, legal advice for any particular situation or individual.
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