Just because many employees are working remotely since the pandemic doesn’t mean employers are off the hook in complying with federal worksite posting requirements.
The U.S. Department of Labor’s Wage & Hour Division (WHD) has issued guidance that lays out for employers their responsibilities when it comes to distributing postings and notices electronically to remote workers.
Federally mandated postings are required to be physically placed in high-traffic areas like breakrooms, but with many employees now working off-site remote workers still need to have access to them, experts say.
"I think the guidance is helpful as a clarification," says John Diviney, a partner in the employment and labor practice at Rivkin Radler LLP in Uniondale. "It was kind of flying under the proverbial radar."
Most employers, he says, do display required postings in their breakrooms, but the guidance offers clarity on the question "what do you do when your employees are no longer on-site to visually see them." This also applies to certain notices employers are required to distribute to employees upon hire, he says.
Among mandatory federal postings are those related to Equal Employment Opportunity, Occupational Safety and Health Act; Family and Medical Leave Act; and Fair Labor Standards Act, Diviney says.
The recent DOL guidance applies to federal postings, but there are also NYS required postings and notices employers should be aware of, he says. (See nwsdy.li/NYSpostings.)
Keith Gutstein, comanaging partner of the Woodbury office of Kaufman Dolowich & Voluck LLP, says he would "err on the side of caution" and in absence of state-issued guidance since the pandemic, employers should follow the federal guidance as best practice when it comes to state postings and notices.
As per the federal DOL guidance:
- "If an employer seeks to meet a worksite posting requirement through electronic means, such as on an intranet site, internet website, or shared network drive or file system posting, the electronic notice must be as effective as a hard-copy posting";
- "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"; and
- "Individuals must be capable of accessing the electronic posting without having to specifically request permission to view a file or access a computer."
Diviney says, "They don’t want a situation where you have to call your HR person" to find the information.
Just as the postings and notices need to be visible to everyone in the office they also need to be visible virtually, says Christina Zaberto, human resources manager at Plainview-based Associated HCM, an Asure company that provides payroll and human capital management services.
"You want it to be easily accessible to everyone in an electronic location employees frequent," she says.
That will differ depending on the employer, but one area to consider is posting somewhere within your Human Resource Information System (HRIS), where employees might go to clock in or out or view a pay stub, she says.
Zaberto said Associated HCM’s clients who opt in for a service that gives automatic updates on changes to federal or state labor law postings were all notified of the DOL guidance. Such clients can get these postings electronically including an all- in-one poster with all the federal requirements listed together.
Employers, though, should still have postings visible in the workplace, says Seth Kaufman, a partner in Fisher Phillips’ New York City office.
The guidance, says Kaufman, states that WHD will only consider electronic posting an acceptable substitute for the continuous posting requirement where:
- 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.
So employers should still maintain physical postings in their break or lunch areas, Kaufman says.
If not, says Gutstein, fines could add up (see sidestat box).
While he’s not aware of any client in the past getting a penalty solely for missing a posting or notice, it usually is added to a list of other violations by state or federal inspectors, he says.
"I would take this seriously," Gutstein adds. "Rather than penalize employers, the issuance of guidance at this time by the USDOL demonstrates a focus on compliance and outreach."
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Fines for neglecting workplace posting requirements can be hefty. For example:
They can reach up to a maximum of $21,663 (on or after 1/16/21) for an EPPA (Employee Polygraph Protection Act) posting fine, or
$13,653 (on or after 1/16/21) for an OSHA posting violation.
Source: Keith Gutstein/ Kaufman Dolowich & Voluck LLP
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