A famous thought experiment asks, “If a tree falls in the forest and no one is around to hear it, does it make a sound?” In a similar vein, now that the COVID-19 pandemic has required large segments of the workforce to work remotely for the first time, employers need to reconsider how they comply with their legal obligations to inform employees about their rights.
Many federal, state, and local employment laws require that notices be placed in prominent locations in the workplace, though posting requirements vary depending on the law in question. Some of those details can be quite specific. For example, the regulations implementing the Occupational Safety and Health Act require that the notices be at least 8½ inches by 14 inches, with at least 10 pt. type.
Failure to comply with these requirements can have serious consequences. In addition to possible monetary fines, some courts have held that an employer's failure to post notices may warrant equitable tolling of applicable limitations periods, in certain circumstances.
A complication arises when employees work remotely, as so many employees have done over the last few months. Because most of the relevant statutes and regulations date from an era before work-from-home became so widespread, the regulations generally contemplate that employers will comply with the notice requirement by placing a physical poster in a breakroom or other common area in the workplace. However, if employees rarely — if ever — go to the physical workplace, a physical poster will do little to inform them of their rights. Recognizing this reality, some courts have held that posting a notice in an office an employee rarely visits does not suffice to meet an employer's obligation to post the notice in a “prominent and accessible place” with respect to that employee.
In light of these concerns, how should an employer notify employees who work remotely about their rights? The Department of Labor (DOL) acknowledges that “[m]ost of the DOL's poster regulations were written before the Internet” was widely used. Thus, a cautious employer might mail their remote employees physical copies of any notices they are required to post in the workplace.
A more practical option is suggested by the DOL's recent regulations implementing the Families First Coronavirus Response (FFCRA). The regulations make clear that “[a]n Employer may satisfy [the notice] requirement by emailing or direct mailing th[e] notice to Employees, or posting th[e] notice on an Employee information internal or external website.” Although this regulation technically applies only to an employer's notice obligations under the FFCRA, it seems likely that many courts and regulators would appreciate that similar efforts undertaken to inform employees of their rights through electronic means comply with the spirit — if not the letter — of older notice regulations.
Given that the regulations in this area have tended to lag behind the realities of an evolving workplace, employers should adopt a belt and suspenders approach, by providing electronic or other notice of employees' rights through multiple channels.
As a best practice, an employer should circulate required notices to work-from-home employees at least annually, and require an acknowledgement of receipt. That way the employer will have proof that notice was provided should the issue arise in the future.
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