DOL Issues Guidance on Electronic Posting of Labor Law Notices

On Dec. 29, 2020, the U.S. Department of Labor (DOL) issued Field Assistance Bulletin 2020-7, which addresses when the DOL will consider electronic posting by employers (by email, or an internet or intranet website) sufficient to provide employees with required notice of their statutory rights under a variety of federal labor laws.

The Bulletin was issued in response to employer questions about the use of electronic means to post notices under the following laws, as more employees work remotely due to the COVID-19 pandemic:

• The Fair Labor Standards Act (FLSA)
• The Family and Medical Leave Act (FMLA)
• The Employee Polygraph Protection Act (EPPA)
• The Service Contract Act (SCA)

This Compliance Bulletin summarizes the current statutory and regulatory posting requirements and explains how electronic means of satisfying these requirements can be achieved pursuant to the DOL guidance.

Action Steps

In most cases, electronic notices supplement, but do not replace, the statutory and regulatory requirements that employers post a hard-copy notice. For example, the DOL encourages both methods of posting where an employer has employees on-site and other employees teleworking full-time.

According to the DOL, whether notices are provided electronically or in hard-copy format, it is an employer’s obligation to provide the required notices to all affected individuals.

General Principles

Continuous Posting

The Bulletin outlines when electronic posting is an acceptable substitute for the continuous posting requirement contained in several statutes (i.e., requiring employers to “post and keep posted” or requiring the posting of a notice “at all times”).

Individual Notices

Where delivery of notices to individual employees is permitted, email delivery (or another similar method of electronic delivery) is sufficient only if the employee customarily receives information from the employer electronically.

Access

Affected individuals must be able to readily see a copy of the required postings in electronic format, which will depend on the facts. For example, the affected individual must be capable of accessing the posting without having to specifically request permission to view a file or access a computer. The employer must take steps to inform employees of where and how to access the notice electronically.

For more details about a specific benefits notice or its requirements, speak with TransGlobal Benefits.

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