Our entire workforce is working remotely right now. Do we still need to post notices on-site?
Quick Answer
In most cases, electronic notices supplement but do not replace hard-copy notice requirements. If a law requires the continuous posting of notice, electronic posting is an acceptable substitute for hard-copy notices only if all employees work exclusively on a remote basis; they all customarily receive information from the employer electronically; and they all have readily available access to the electronically posted information at all times.
Legal Perspective
Fisher Phillips
Kansas City, Missouri
Yes, employers must still post required notices in the physical workplace, even if employees aren’t currently there, says employment law attorney and partner Samantha Monsees, of the firm Fisher Phillips.
For remote workers, if employers do not have an intranet site or other virtual location for notices to be posted for all employees, employers should take steps to ensure all employees have notice of their statutory rights under federal laws (such as the Fair Labor Standards Act, the Family Medical Leave Act, the National Labor Relations Act, the Occupational Safety and Health Act) that may be applicable depending on the employee’s location, the total number of employees and other factors. Employers should be mindful that other state laws may have posting requirements as well.
Relevant Case Law
Dube v. J.P. Morgan Investor Services
Cormier v. Littlefield
Cruz v. Maypa
The Cost of Noncompliance
DOL: Publix violated FMLA notification requirements, ordered to reinstate worker, pay back wages
Who was involved: Publix Super Markets Inc., a regional grocery store chain, and an employee who worked in a Florida warehouse.
What happened: According to a DOL investigation, the company fired the worker, who had a qualifying medical condition, for taking FMLA leave. The agency also determined the company violated the FMLA by failing to provide the employee proper notices, including: 1) a timely FMLA-leave eligibility notification letter; 2) a rights and responsibilities notice; and 3) a designation notice. In the press release, the agency explained that all covered employers are required to display a poster prepared by the DOL summarizing the major provisions of the FMLA and telling employees how to file a complaint. Moreover, the poster must be displayed in a conspicuous place where employees and applicants for employment can see it, according to the DOL.
Result: The company reinstated the employee and also paid him $12,727 in back wages and $5,127 for his medical expenses.
Info: DOL Recovers More Than $17K for Fired Employee After Company Violates FMLA Leave Protections, 12/8/22.
DOL: Staples pays $275K for FMLA violations
Who was involved: Staples Contract and Commercial, Inc., a subsidiary of Staples, Inc., and a former employee who worked in South Carolina.
What happened: The employee informed his supervisors that he needed to take time off to care for his critically ill wife. Over the next two years, the employee used his personal days, sick days and vacation days when he needed time off to care for his wife. He also worked remotely. Eventually, the company determined the worker was no longer meeting his job duties and fired him. According to the Department of Labor’s investigation, the company failed to provide notice to the employee that he was eligible for time off under the FMLA to care for his wife, in violation of federal law.
Result: To resolve the dispute, the company agreed to pay the employee $137,500 in lost wages and benefits, plus an equal amount in liquidated damages. As part of the settlement, the company also agreed to:
- Provide company-wide training to HR and managers with respect to FMLA notice and eligibility requirements
- Post FMLA enforcement posters in the workplace, and
- Investigate and respond to complaints of potential FMLA violations regarding notice of workers’ rights under the FMLA.
Key Takeaways
- Federal laws, including the federal Fair Labor Standards Act, Family and Medical Leave Act, Employee Polygraph Protection Act and Service Contract Act, establish notice posting requirements.
- These requirements vary by employer because not all laws apply to all employers.
- If a law requires the continuous posting of notice, then physical posting at the workplace is generally required even when employees are working remotely.
- The federal Department of Labor has advised that electronic posting is an acceptable substitute for physical posting only if all employees always work remotely, they usually get their information from the employer electronically, and they can access the electronically posted information at all times.
- Electronic notices must be as effective as hard-copy notices.
- Electronic notices may be provided via an intranet site, and internet website, or shared network drive or file system.
- Individual state laws may set their own separate notice posting requirements.
INSIDER CONTENT
Q&As