Labor Law Poster Requirements for Remote Workers

With more employees working remotely than ever before and many organizations continuing to employ sales and other key staff located across the region or country, Members need to be aware of their posting obligations both at the state and federal level. The Department of Labor (DOL) has clarified that employers should provide electronic postings to any employee who does not visit a posting-compliant work location at least 3-4 times a month.

The DOL's Wage and Hour Division (WHD) has published guidance on meeting these notice requirements, which depend on multiple factors, including whether the entire workforce is remote or just a subset of workers. To add more nuance, certain notices require one time distribution, while other notices must be continuously available.

Hybrid vs Fully Remote Workforces
Certain federal and state notices are required to be “posted and kept posted,” meaning they cannot be simply distributed one time and not be regularly available to employees. Employers may only use electronic means to post the notice as a substitute for the hard copy notice if all employees:

• Exclusively work remotely,
• Customarily receive information from the employer via electronic means, and
• Have readily available access to the electronic posting at all times. Employees (and applicants if required) must be capable of accessing the electronic posting without having to specifically request permission to view a file or access a computer.

This means employers with hybrid workforces must post hard copies of notices at their facilities, as well as provide notices electronically for remote employees. In addition, simply emailing many labor law notices to remote employees will not comply with the guidance, instead they should be posted via a website link or shared network drive that employees have readily available access to.

Remote employees must be notified where notices are stored and be able to easily determine which electronic posting is applicable to them and their worksite. The guidance specifically states, “if the employer has not taken steps to inform employees of where and how to access the notice electronically, WHD will not consider the employer to have complied with the posting requirement.”

Which Notices Require Continual Posting?
Posting requirements for the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Employee Polygraph Protection Act (EPPA) require continuous posting.

• FMLA Notices apply to employers with 50 or more employees and must also be displayed for applicants. Where the employer's workforce is comprised of a significant portion of workers who are not literate in English, the employer is also required to provide the notice in a language in which the employees are literate.
• The FMLA and EPPA notices must be available for both employees and applicants, which means that employers with fully remote hiring practices should provide this notice as a link or text on their job posting site.
  Posting requirements for the Service Contract Act (SCA) apply to certain contractors and subcontractors and may be delivered to each employee or posted in a prominent and accessible place at the worksite. This notice may be distributed to remote workers via email delivery but only if the employee customarily receives information from the employer electronically.

Which States’ Notices Should I Provide?
If you have remote employees working in different states, it’s not always obvious which state laws apply. The laws where an employee works, not lives, typically govern basic employment rights, such as minimum wage, overtime, and safety issues but be aware that your remote employees may be covered by the laws at your primary location and the laws of the state where they work.

Oregon allows employer to provide required posters on an individual basis in a physical or electronic format that is reasonably conspicuous and accessible. The requirements listed in the DOL WHD guidance will meet the obligations in Oregon.

Washington allows employers to provide electronic links to the required posters in addition to posting the actual posters in the workplace. For example, if your business has an internal web page, you could include a link to the workplace posters as an additional resource. The requirements listed in the DOL WHD guidance will meet the obligations in Washington.

Practical Procedures for Meeting Posting Requirements
Because the posting requirements for federal agencies such as the DOL and OSHA vary, it may be most practical to post all required postings for remote workers via a website link or on a shared network drive. Employers should establish an easy-to-access location for these notices of statutory rights and inform workers where to find them. Just as you update your physical labor law posters for onsite workers, make sure you communicate any mandatory updates and save current versions of notices on your electronic posting site.

If you have employees working in multiple states, it may be best to provide multiple sets of state-specific postings to remote workers to ensure you are meeting your posting requirements. Employers need to ensure that all employees, regardless of where they work, know which federal and state specific postings apply to them.

Members with questions about their specific posting requirements can reach out to the UEA team on our Employer Helpline by calling (503) 595-2071 or employerhelpline@unitedemployers.org.