We have previously talked about various posting requirements for Maine employers. These include posters that meet DOL requirements, as well as those required by other federal and state laws. There are specific requirements for postings in terms of where they are found, how they are disseminated, and who has to have access to them. This was less complicated prior to COVID, when most workers were in or had access to an office space where the postings could be maintained. With the increase in remote workers, there have been questions about how those employees (and applicants in some situations) would see the posters. We have surmised the electronic dissemination would likely be sufficient, but there was no official confirmation of that.
Until last week, that is. The DOL has now issued Field Assistance Bulletin 2020-7, which addressed posting requirements for employers in a non-traditional workplace. This is significant for employers with remote workers. The guidance only applies to those federal posting requirements enforced by the DOL, such as FMLA and FLSA. It does not apply to posting requirements under other agencies, such as the EEOC or state postings. However, it arguably serves as guidance for how to disseminate those postings as well.
The following is a brief synopsis of the bulletin.
If an employer has both remote and in-person workers, it must still post the posters physically in the workplace but can use electronic posting for the remote workers.
If an employer has an entirely remote workforce, it may use only electronic posting, under certain defined circumstances. These conditions include: all employees are working remotely; information is customarily disseminated electronically; the employees have “readily available access” to the electronic postings at all times; and the employer takes affirmative steps to ensure that its employees are informed of how and where to access the information.
In some circumstances, certain posters have to be made available to applicants. In those situations, electronic posting is acceptable if the hiring process is also conducted remotely and the applicants have readily available access to the electronic posting at all times.
You can find the bulletin at https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fab_2020_7.pdf.