The CDC and OSHA have recently relaxed COVID-19 guidance on mask-wearing and distancing for fully vaccinated employees. Although many employers are transitioning back to an office-based work environment, telecommuting is likely to remain an option for many employees for some time to come. One question that has arisen with respect to telecommuting employees is how an employer may satisfy its legal obligation to provide notice of labor laws to such employees.
The DOL’s Wage and Hour Division recently issued guidance that provides answers. In its Field Assistance Bulletin No. 2020-7, the DOL says the answer depends on whether the posting requirement comes from a law with a continuous posting requirement or one that requires individual notices, and whether the employer’s workforce is exclusively remote or a mix of on-site and telecommuting employees.
Continuous posting laws require employers to “post and keep posted” or post a notice “at all times.” These generally must be placed in conspicuous locations, such as a break room or other high traffic area. Examples of laws with a continuous posting requirement include the Fair Labor Standards Act (“FLSA”), see 29 C.F.R. § 516.4, and the Family and Medical Leave Act (“FMLA”), see 29 C.F.R. § 825.300(a)(1).
For such laws, the DOL further distinguishes between employers with an exclusively remote workforce from those with a mixture of on-site and telecommuting employees.
- Exclusively remote workforce: If “all of the employer’s employees exclusively work remotely,” then an employer may satisfy its notice obligations by electronic posting to an intranet, website, or shared network drive, provided that
- “[A]ll employees customarily receive information from the employer via electronic means; and
- “[A]ll employees have readily available access to the electronic posting at all times.
- Mixed workforce: With respect to employers with a mixed workforce, the DOL recommends supplementing hard-copy postings with electronic postings.
Individual notices are required to each employee under some laws. Such laws include Section 14(c) of the FLSA (related to subminimum wage certificates) and the Service Contract Act. With respect to individual notice requirements, the DOL’s position is that an employer may meet its obligation “via email delivery (or another similar method of electronic delivery), only if the employee customarily receives information from the employer electronically.”
The Bottom Line
The DOL is supportive of employers providing electronic labor law notifications to employees working remotely. The agency still requires transparency and ease of access, however. Employers should therefore ensure that electronic notifications are easy to find online—i.e., employees should have a reason to know that postings are located in such areas—because “a determination of whether affected individuals can readily see an electronic posting depends on the facts,” and “[p]osting on an unknown or little-known electronic location has the effect of hiding the notice.” And when considering sending individual notices electronically, the employer must make sure that the employee(s) at issue customarily receive information electronically.