21 Jan

January 2021: New DOL Guidance on Mandated Notices in a Virtual Workplace

Posted at

11:00am

in

Update Applicable to:
All employers.

What happened?
On December 29, 2020, the DOL issued Field Assistance Bulletin 2020-7, which provides guidance to the DOL’s field staff on enforcing posting requirements in circumstances here there is no traditional workplace.

What are the details?
Bulletin 2020-7 covers many requirements over its five pages. Here are the key points:

  • Notice requirements generally appear in one of two varieties: (1) one-time notice and (2)
  • continuous posting.
  • Employers may satisfy one-time notice requirements (e.g., as required by the Service Contract Act) by email delivery if employees customarily receive emails from the employer.
  • For continuous-posting requirements (e.g., FLSA, FMLA, EPPA, and the Davis-Bacon Act), the guidance makes a distinction between employers with only some remote employees and employers with an entirely remote workforce.
  • For employers with some remote workers, physical posters are required for on-site employees, and the DOL “encourages” electronic posting for the teleworking employees.
  • Employers with an entirely remote workforce may satisfy continuous-posting obligations using electronic-only means if they meet the following requirements:
    • All employees exclusively work remotely;
    • All employees customarily receive information from the employer via electronic means;
    • All employees have “readily available access” to the electronic posting at all times, e.g., via an internal or external website or a shared network drive or file system. The DOL notes that whether access is readily available is fact-specific and requires, for example, that employees be able to access the notice without having to request permission.
    • The employer must take steps to inform employees of where and how to access the notice(s) electronically.
  • If the employer has multiple groups of employees to whom different notices apply, the employees must be able to “easily determine” which posting is applicable to them.
  • For laws that require posters be visible to applicants (e.g., EPPA), virtual-only posting is permitted if the hiring process is itself conducted remotely and the applicants have readily available access to the electronic posting at all times.
  • The DOL’s guidance only applies to federal posting requirements enforced by the DOL. It does not address posting requirements enforced by other federal agencies (e.g., EEOC) or state-mandated posting requirements.

The U.S. Department of Labor issued Field Assistance Bulletin 2020-7 can be found here.

What do employers need to do?
Employers who have moved to virtual workplaces should review any necessary posting requirements. If employers have any concerns or questions they should reach out to their CRS or CRM.

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