Of course, we all look forward to reading the updated labor law posters every year on the breakroom wall while waiting for the microwave to finish heating up lunch. As we know, the required labor law posters are not merely provided for their entertainment value but are legally required notices explaining employee rights. With so many employees working remotely as a result of the pandemic, employers need to know how to stay in compliance with their posting requirements.
Recently the Department of Labor provided some much needed guidance for employers on when it is permissible to disseminate federally required postings and notices in electronic form. Certain required postings are required to be on display at all times in a prominent and conspicuous place where they can be readily observed by employees (e.g., Fair Labor Standards Act, Family and Medical Leave Act, etc.) and, in some instances, job applicants (e.g., Polygraph Protection Act). For these postings, an electronic version is only an acceptable substitute if and when:
- 100% of employees work remotely.
- 100% of employees customarily receive communications from their employer electronically.
- 100% of employees have readily available access to the electronic postings at all times. Further, employers must take reasonable steps to ensure employees know where and how to access the electronic postings and be able to easily determine which postings are applicable to them.
- Postings required to be on display for job applicants can only be electronic if the hiring process is conducted remotely and applicants have readily available access to the electronic postings at all times.
Employers with both on-site and remote workers are still required to post a hard copy of the postings at each worksite and are encouraged to supplement that with an electronic posting for the remote workforce.
For other federally required notices that do not require a continuous posting requirement (e.g., Service Contract Act), employers are able to meet their obligation by sending the notice to remote employees via email as long as employees customarily receive emails from their employer.
As helpful as this guidance is, it only applies to Department of Labor federal postings and notices requirements and not rules enforced by other federal agencies (e.g., Equal Employment Opportunity Commission, National Labor Relations Board). Additionally, California employers are also required to display state and other posters depending on local ordinances, in addition to all applicable wage orders.
So, what are employers supposed to do? Unfortunately, most postings are still required to be provided in a hard copy format in order for employers to be in compliance. At each worksite, the postings must be displayed at all times in a place where they can be readily observed by employees and applicants. Additionally, employers are obligated to mail hard copies to the remote work address they have on file for each employee for employees to post. Here are suggestions on how to accomplish this.
- Workplace postings are typically available at no cost from the requiring agency. This year’s updates to mandatory postings include California’s Minimum Wage Notice, Employment Development Department’s Notice to Employees, Family Care, Medical Leave and Pregnancy Disability Leave Notice, and Your Rights and Obligations as a Pregnant Employee.
- Several online resources have begun offering pre-made kits available for purchase for distribution to remote employees.
- You could purchase the same poster that you hang at the worksite for each employee to post at their remote location (likely the most expensive option).
Whichever you choose, always remember, several of the required postings must be filled out with information specifically related to each employer in order to be compliant.