HR Headaches: How Can Virtual Employees Access Workplace Labor Law Posters?

Working-from-home (WFH) arrangements were already on the rise when COVID-19 took hold in 2020. But the pandemic bumped remote work to levels no one had imagined. And while the virus changed a lot about how work gets done, it didn’t end the federal- and state-mandated display of labor law posters and notices at the worksite.

Every day the postings remind workers of:

• Labor policies
• The penalties for violating the labor policies
• Employees’ rights

But now that more employees are working remotely, are they going to see these postings without returning to the worksite, and does it matter if they don’t?

Now that more employees are working remotely, are they going to see these postings without returning to the worksite?

The short answer is that government agencies like the U.S. Department of Labor (DOL) and state and municipal labor agencies still require workplaces to display employment law posters and notices in highly visible onsite areas.

DOL posting bulletin

The DOL released the Field Assistance Bulletin in 2021 in response to employers’ questions about how to handle posting requirements for remote workers. The guidance is for the department’s Wage and Hour Division (WHD) staff, who oversee enforcement of the posting requirements. The laws initially applied to the:

• Fair Labor Standards Act (FLSA)
• Family Medical Leave Act (FMLA)
• Employee Polygraph Protection Act (EPPA)
• Service Contract Act (SCA)

Employers’ challenge is ensuring their remote workers receive and understand all required postings.

Electronic posters

Digitization has revolutionized the workplace in countless ways, including the multiple communication platforms available to employers. In fact, digitization allows employers to make sure remote workers see all the required labor law posters.

In an email to Workest, Rita Mkrtchyan, a senior finance and litigation defense attorney at Oak View Law Group and owner and founder of the Junior Scholar Learning Center, explained the DOL’s position on digital labor law posters.

“During the height of the pandemic and the shift to remote work, the U.S. Department of Labor (DOL) issued a bulletin about whether digital labor law postings are compliant,” noted Mkrtchyan. She said the department finds electronic postings acceptable if employers:

• Have an entirely remote workforce
• Provide employees with easy, conspicuous electronic access to the digital posting
• Make sure employees can readily determine which postings apply to them
• Communicate electronically to employees regularly and consistently
• Inform employees where and how to access electronic labor law postings

Mkrtchyan said that the DOL identifies employees as remote workers if they don’t visit the worksite more than three to four times a month.

The DOL doesn’t allow employers to satisfy the posting requirements through direct mailing or other single notice means of distribution to employees.

Posting for the hybrid workplace

How do employers with both onsite and remote workers handle postings? “The DOL requires these employers to display both electronic and hard copies of posters,” said Mkrtchyan.  DOL requires employers to “post and keep posting” notices onsite and considers electronic posters as a substitute for hard copies.

Besides federal posting requirements, employers must know whether the state or locality of their business has additional posting requirements.

Mkrtchyan added that the department allows exclusively digital postings by employers if their employees:

1. Are entirely remote workers
2. Regularly receive electronic communication
3. Have “readily available access” to electronic posters 24/7

Brian David Crane, the founder of SmartCaller, a reverse-call platform, and Spread Great Ideas, a platform of thought leaders, told Workest via email that Spread Great Ideas, as a predominately remote workplace, shares employment law posters with employees through its internal team forums.

Besides federal posting requirements, employers must know whether the state or locality of their business has additional posting requirements.

State labor laws

Employers must know their state’s labor laws as well as the federal government’s mandates to comply with posting requirements.

Mkrtchyan reminds employers that DOL posting requirements apply only to federal notices. Therefore, states or localities may have different posting requirements that employers are also responsible for researching and complying with.

“The most reliable way to meet state and local requirements is to contact the state labor office,” said Mkrtchyan.

Employers can also find out from local labor offices what to do when remote employees work in outlying states and jurisdictions.

Remote workers as outliers

How does, say, a New Jersey employer with remote workers in New York State handle posting requirements? Mkrtchyan noted that the law generally comes down to the employer’s location.

“The laws where an employee works, not lives, typically govern basic employment rights, such as minimum wage, overtime, and safety issues,” said Mkrtchyan. She added, however, that, in some instances, remote employees may be covered by the laws of the state where they work and those covering where they live.

“The safest option for employers is to provide multiple sets of state-specific postings to remote workers,” Mkrtchyan said.

Posting rules and violation penalties

In some cases, the WHD enforces most posting rules, along with other government agencies.

Posting rules vary by statute. And not all laws cover every employer. For example, the FMLA doesn’t apply to small businesses (SMBs) with fewer than 50 employees. Therefore, these employers aren’t required to display FMLA posters.

Ignoring labor-law posting rules – like violating the laws they explain – comes with steep penalties. “If an employer does not display employment law notices at work, they may face penalties, fines, and lawsuits,” said Mkrtchyan.

Poster lineup

Employers who have been regularly displaying employment posters and notices likely know which government agencies require them. The DOL offers a list of federal and state labor posters or elaws Advisor (Employment Laws Assistance for Workers and Small Businesses) on its website for:

• Em­­­ployers who now have permanent remote workers
• Businesses whose growth makes them eligible for posting rules for the first time
• Startups

Here’s a short list of key mandatory posters and the government agencies that enforce them:­

• “Job Safety and Health: It’s the Law,” Occupational Safety and Health Administration (OSHA)
• “Employee Rights and Responsibilities Under the FMLA), DOL
• “Equal Employment Opportunity is the Law,” U.S. Equal Employment Opportunity Commission (EEOC)
• “Service Contract Agreement” (SGA), DOL
• “Uniformed Services Employment and Reemployment Rights Act” (USERRA), DOL and the Office of Special Counsel

Posters by topic

Posters cover other labor topics, including:

• Government contractors
• Migrant and seasonal worker protection
• Federal and state minimum wages
• COVID-19
• State unemployment

Posters may even include executive orders that address employment issues.

Also, it’s not enough to display posters and notices as required. These materials need updating as lawmakers change or amend them.

State labor laws

Employers must know their state’s labor laws as well as the federal government’s mandates to comply with posting requirements.

“The most reliable way for employers to meet state and local requirements is to contact their state labor office.”

Mkrtchyan reminds employers that DOL posting requirements apply only to federal notices. Therefore, states or localities may have different posting requirements that employers are responsible for researching and complying with.

“The most reliable way for employers to meet state and local requirements is to contact their state labor office,” said Mkrtchyan.

Posting strategies

Crane makes sure his employees receive the required posters individually. He also ensures that posters are shared with employees in a timely way.

“We have live, automated updates shared through our team messaging systems, weekly meetings, and Slack, [which] we use for team management,” said Crane.

Crane’s company even makes employment law posters visible to applicants who want to work there remotely.

The takeaway

Employers with remote workers asked for help with complying with employment law posting requirements, and the DOL responded with easy-to-follow guidance.

“A good idea is to make the electronic versions available on the company intranet and employee portal, where employees can constantly access [them],” said Crane. “Companies can also make it mandatory to inform new hires about the virtual location of the postings during the remote employee’s onboarding process.”

The DOL offers free electronic posters in various languages with downloading instructions. The WHD provides instructions for ordering hard copies on its website.