The U.S. Department of Labor’s Wage and Hour Division (WHD) recently issued Field Assistance Bulletin (FAB) No. 2020-7 providing guidance to WHD field staff (and, consequently, to employers) regarding the electronic posting of required notices under certain criteria.
The FAB explains that “[a]s more employees work remotely due to the COVID-19 pandemic, WHD has received questions from employers regarding the use of email or postings on an internet or intranet website, including shared network drive or file system, to provide employees with required notices of their statutory rights.”
The FAB discusses electronic posting in the context of five statutes: (1) the Fair Labor Standards Act (FLSA), (2) the Family and Medical Leave Act (FMLA), (3) section 14(c) of the FLSA, (4) the Employee Polygraph Protection Act (EPPA), and (5) the Services Contract Act (SCA).
The FLSA requires employers to post a notice explaining the FLSA in conspicuous places in every establishment where employees are employed. (29 C.F.R. § 516.4.) In light of this regulatory language, the WHD will consider electronic posting to be a sufficient substitute for hard-copy posting only if:
- All of 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 (e.g., on an internal or external website or shared network drive or file system).
The WHD notes that when an employer has both on-site and telecommuting employees, “the employer may supplement a hard-copy posting requirement with electronic posting and the Department would encourage both methods of posting.”
FMLA regulations already permit electronic notice posting. (29 C.F.R. § 825.300(a)(1).) The WHD will deem electronic posting to satisfy the FMLA’s posting requirements when all hiring and work is done remotely and an employer posts the appropriate FMLA notice on an internal or external website that is accessible to all employees and applicants.
Section 14(c) of the FLSA
Employers with workers employed under section 14(c) subminimum wage certificates (see 29 U.S.C. § 214(c)) may provide the required notice directly to the workers when an employer deems it inappropriate to post the notice. (29 C.F.R. § 525.14.) In such cases, employers may satisfy its posting obligations by emailing the notice to workers.
Like the FLSA, the EPPA requires employers to post a notice explaining the EPPA in conspicuous places in every establishment where employees are employed. (29 C.F.R. § 801.6) Thus, the WHD will consider electronic posting a sufficient substitute for purposes of the EPPA under the same circumstances as for the FLSA, discussed above.
All contractors and subcontractors subject to the SCA working on contracts in excess of $2500 are required to notify employees of the required compensation and fringe benefits by using WH Publication 1313. (41 U.S.C. § 6703(4); 29 C.F.R. §§ 4.183-4.184.) This notice may be delivered via email if email is customarily used by the employer to communicate with the contractor or subcontractor. In addition, electronic posting is permissible if the notice is as readily accessible as a hard-copy posting would be. The WHD cautions, however, that “an electronic posting will not be considered readily accessible if an employee must specifically request access to a computer or ask for file permissions to view the posting, and an employer must take steps to inform employees of how and where to access the electronic posting.”
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