E-Delivery May Satisfy Posting Requirements Under FMLA, FLSA, Other Laws

Author: Michael Cardman, XpertHR Legal Editor

January 6, 2021

Employers may satisfy some federal workplace notice-posting requirements by emailing notices to employees or posting them on a company website - but only if the employer's workforce is 100% remote and other conditions are met.

Several federal employment laws - including the Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA) - require that employers either "post and keep posted" a notice advising employees about their rights under the law or post a notice "at all times."

With more employees working remotely now due to the coronavirus (COVID-19) pandemic, the US Department of Labor (DOL) recently issued a field assistance bulletin to let employers know they may satisfy these continuous-posting requirements by emailing employees or by posting on an internet or intranet website (including a shared network drive or file system), but only if:

  • All of the employer's employees exclusively work remotely;
  • All employees customarily receive information from the employer via electronic means; and
  • All employees have readily available access to the electronic posting at all times.

This applies to the following required posters:

Failure to post a mandatory notice can result in a civil penalty - for example, $176 per each separate offense under the FMLA, currently. Unlike other compliance issues that may require an extensive, complex investigation by enforcement authorities, the failure to post a notice is a fairly straightforward source of potential liability.

Access Requirements

Any electronic notices must be as effective as a hard-copy posting, according to the DOL. Many employment laws require that employees be able to readily see a copy of the required postings, and these same requirements apply to electronic notices.

To determine whether employees can readily see an electronic posting, the DOL will consider factors such as:

  • Can employees access the electronic posting without having to specifically request permission to view a file or access a computer?
  • Does the employer customarily post notices to affected employees or other affected individuals electronically?
  • Has the employer taken steps to inform employees of where and how to access the notice electronically (since posting on an unknown or little-known electronic location has the effect of hiding the notice, similar to posting a hard-copy notice in an inconspicuous place, such as a custodial closet or little-visited basement)?
  • Can employees easily determine which electronic posting is applicable to them and their worksite?