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Flexibility offered to American Workforce During Pandemic Recovery: How to “post” notices for the virtual or hybrid workplace

By: Cristina N. Hyde, JD

Last week, the Campanella Law Office blog addressed the importance of continued compliance with an employer’s requirement to provide conspicuous notices of employees rights in the workplace; particularly in light of several recent federal and state-level legislative updates.  Of course, complying with many of these requirements has become increasingly difficult as in-person work environments have pivoted to provide virtual and hybrid-workspace options in response to the pandemic.

Thankfully, the United States Department of Labor’s Wage and Hour Division (WHD) has recognized the challenges presented to American businesses by the COVID-19 pandemic. In an ongoing effort to support the country’s employers through pandemic recovery, WHD guidance, addresses compliance with notice and posting requirements when employees are working remotely; supporting flexibility through virtual communication and suggesting that it will consider electronic posting by employers using email or an internet or intranet website to satisfy the employer’s notice requirements under a variety of federal labor laws.

The WHD does clarify that that in most cases, electronic notices are supplemental to and not a replacement for the statutory and regularity requirements that employers post a hard-copy notice. Also, an acceptable electronic supplement varies depending on whether regulations require “continuous posting” or permit delivery of “individual notices” to employees.  Like their hard-copy counterparts, electronic notices must be readily available to all.  Whether an employer satisfies that requirement is, according to the WHD, fact dependent; looking at requiring an evaluation of access by affected individuals and an employers past practice regarding electronic notices, among other factors.

Moreover, employers should remain cognizant of notice and posting requirements relating to state and local-level legislation.  While most states have not issued their own guidance on electronic posting, applying the federal guidelines to state and local notice requirements is advisable in order to ensure compliance at all levels and until such time as specific state and local level guidance is available.

You can find a wealth of information regarding compliance with federal requirements on the Department of Labor’s website and specifically, its FirstStep Poster Advisor tool.  Moreover, updated information on notice and posting requirements can be found on the WHD’s website.

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