Wage and Hour Posting Requirements in the Remote Workplace
For many office workers, it feels like decades since they’ve strolled down the hall to grab a cup of coffee in the break room. As we close in on the one-year anniversary of the first diagnosed coronavirus case, many offices remain shuttered with all or most employees working remotely. Thus, many of the nation’s break rooms are vacant with their bulletin boards hanging unseen.
These bulletin boards, however, perform a vital compliance function for employers because many of the nation’s employment laws require the posting of notices that inform employees of their rights under these laws. Notably, these include the Fair Labor Standards Act (“FLSA”), the Family and Medical Leave Act (“FMLA”), the Service Contract Act (“SCA”), and the Employee Polygraph Protection Act (“EPPA”). The remote workplace that we have experienced in the past year has prompted many employers to wonder whether the posters in the break room comply with their posting requirements when everyone knows that they largely will remain unseen.
The Wage and Hour Division (“WHD”) of the Department of Labor recently issued a Field Assistance Bulletin that was prompted by employers who wondered whether they could use email or postings on their companies’ intranets to satisfy their notice duties with respect to remote workers. While this bulletin does not have the force of law, it does state “when, as a matter of enforcement policy, WHD will consider these forms of electronic notice to satisfy the notice requirements” of the FLSA, FMLA, SCA and the EPPA. See Field Assistance Bulletin 2020-7 (Dec. 29, 2020) (found at https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fab_2020_7.pdf).
The particular manner of notice required under these statutes varies to certain degrees, which I won’t specify here (you can find summaries of the requirements in the Bulletin and we also have blogged about the FLSA , SCA and Davis-Bacon Act posting requirements here). However, several guiding principles inform an employer’s ability to rely on electronic posting and/or email notifications:
Employers that maintain bricks-and-mortar work places must continue to post hard copies of the required notices in a conspicuous location at every establishment where an employer’s personnel work. However, if some, but not all, employees work remotely, WHD “would encourage both methods of posting.”
For electronic posting to substitute for hard-copy posting, all employees must: (1) work remotely, (2) “customarily receive information from [their] employer via electronic means,” and (3) readily have “access to the electronic posting at all times.”
If a particular statute permits or requires individual notices (e.g., the SCA or the subminimum wage provisions of the FLSA), notifications via email are permitted if employers customarily provide information to their employees electronically.
Access is crucial—an employer’s electronic posting must be as effective as hard copy posting. Thus, posting the notice in an obscure location on company servers will not suffice just as posting a hard-copy in a basement broom closet will not fulfill the posting obligation. Thus, the electronic location where these postings are placed should be locations where such information is customarily provided to employees and the workers must be able to view them without needing to request permission. And, employees should be informed about where they can find such notifications, particularly if electronic posting is being implemented for the first time or if changes are made.
For government contractors, posting the SCA poster alone is not sufficient. Employers must also post wage determinations that are applicable to the workers who perform work on the service contract. Contractors should further take note that this Bulletin does not apply to the Davis-Bacon Act requirement to post notices at the work site where the contract is being performed.
Posting violations are not unusual and, by themselves, are not especially serious. However, the failure to post notices will be piled onto other violations and could negatively affect the Government’s assessment of what sanctions, including debarment, might be warranted in a particular case. We urge all employers and government contractors in particular to be mindful of these duties and to avoid cookie-cutter one poster fits all solutions.