Wage and Hour Division Issues Two Pandemic-Inspired Field Assistance Bulletins

Field Assistance Bulletin 2020-7

As more employees work remotely due to the COVID-19 pandemic, employers have questioned the Wage and Hour Division about using e-mail or postings on an internet or intranet website, including a shared network drive or file system, to notify employees about their statutory rights. FAB 2020-7 tackles that issue.

According to FAB 2020-7, three general principles inform the Wage and Hour Division’s policy in this area.

Continuous Postings

Some laws require employers to “post and keep posted” or post a notice “at all times.” According to FAB 2020-7, in most cases, the electronic posting is an acceptable substitute for a continuous hard-copy posting requirement only if

• the employer’s entire workforce exclusively works remotely;
• all employees customarily receive information from the employer electronically; and
• all employees have ready access to the electronic posting at all times.

If some employees work on-site and others telework full time, the employer may supplement a hard-copy posting with electronic posting. And, the Wage and Hour Division encourages both posting methods.

Individual Notices

Some statutes permit employers to meet notice requirements by delivering an individual notice to each employee. In those instances, according to FAB 2020-7, employers may satisfy the notice requirement through e-mail delivery (or another similar method of electronic delivery), only if the employer customarily dispatches information to employees electronically.

Access

If an employer seeks to meet a worksite posting requirement electronically, such as on an intranet site, internet website, or shared network drive or file system posting, the electronic notice must be as effective as a hard-copy posting. Determining whether affected individuals can readily see an electronic posting depends on the facts. The individuals must, for example, be able to access electronic posting without requesting permission to view a file or access a computer. Likewise, the Wage and Hour Division won’t consider electronic posting on a website or intranet effective if an employer doesn’t customarily post notices to affected employees or other individuals electronically.

Moreover, if the employer hasn’t taken steps to tell employees where and how to access the notice electronically, the Wage and Hour Division will conclude that the employer hasn’t complied with the posting requirement. That’s because posting on an unknown or little-known electronic location effectively hides the notice, like posting a hard-copy notice in an inconspicuous place, such as a custodial closet or a little-visited basement. Plus, if the affected individuals cannot easily determine which electronic posting applies to them and their worksite, the Wage and Hour Division will consider the posting insufficient.

After discussing those general principles, FAB 2020-7 applies them to specific statutes under the Wage and Hour Division’s purview.

The Fair Labor Standards Act: Minimum Wage, Overtime, and Nursing Mothers Break Time Provisions

Employers subject to the FLSA’s minimum wage, overtime, and/or nursing mothers break time provisions must post and keep posted a notice explaining the FLSA in conspicuous places in every establishment where employees are employed and where every employee can readily observe a copy. According to FAB 2020-7, an electronic posting is an acceptable substitute for a continuous hard-copy posting requirement only if (1) the employer’s entire workforce exclusively works remotely; (2) all employees customarily receive information from the employer electronically; and (3) all employees have read access to the electronic posting, at all times.

The Family and Medical Leave Act

FMLA regulations permit employers to electronically post the general FMLA notice if the electronic posting otherwise meets the posting mandates, which require each covered employer to post and keep posted, in conspicuous places on the premises where employees are employed, a general notice explaining the FMLA’s provisions and providing information concerning the procedures for filing FMLA complaints with the Wage and Hour Division. Employers must post the notice prominently where employees and applicants can readily see it. And, the poster and text must be large enough to be easily read and contain fully legible text.

FAB 2020-7 states that an electronic posting satisfies those requirements if, for example, all hiring and work are done remotely and an employer posts the FMLA notice on an internal or external website that is accessible to all employees and applicants.

Section 14(c) of the Fair Labor Standards Act: Subminimum Wage Certificates

An employer that employs workers under Section 14(c) subminimum wage certificates must, at all times, display and make available to employees a Wage and Hour Administrator-prescribed poster. The poster must generally explain the conditions under which subminimum wages may be paid. Also, employers must post it in a conspicuous place on the employer's premises where it may be readily observed by the workers with disabilities, their parents and guardians, and other workers. If the employer finds it inappropriate to post such a notice, the employer may give the poster directly to all employees subject to its terms.

Thus, according to FAB 2020-7, if an employer finds it inappropriate to post a physical notice to employees, it may satisfy Section 14(c)’s posting requirements by e-mailing or direct mailing the poster to workers employed under 14(c) subminimum wage certificates or, where appropriate, to their parents and/or guardians.

The Employee Polygraph Protection Act

Employers subject to the Employee Polygraph Protection Act must post and keep posted, in every establishment and in a prominent and conspicuous place where employees and applicants can readily observe it, a notice explaining the Act. FAB 2020-7 explains that electronic posting is an acceptable substitute for a continuous hard-copy posting requirement only if (1) the employer’s entire workforce exclusively works remotely; (2) all employees customarily receive information from the employer electronically; and (3) all employees have read access to the electronic posting, at all times.

The Service Contract Act

Under the Service Contract Act, covered contractors and subcontractors working on contracts in excess of $2,500 must notify employees commencing covered work about the required compensation and fringe benefits by using WH Publication 1313 and any applicable wage determination. Contractors and subcontractors may deliver the notice to each employee (including via e-mail, if e-mail is customarily used by that employee to communicate with the contractor regarding their work on the contract). Also, employers may post the notice in a prominent and accessible place at the worksite where employees performing work on the contract can see it.

According to FAB 2020-7, an electronic posting satisfies those requirements only if (1) the employer’s entire workforce exclusively works remotely; (2) all employees customarily receive information from the employer electronically; and (3) all employees have read access to the electronic posting, at all times.

Field Assistance Bulletin 2020-8

The Wage and Hour Division’s second field assistance bulletin, FAB 2020-8, addresses when the Division considers telemedicine an “in-person” visit to establish a serious health condition under the FMLA.

Here’s the background:

The FMLA allows eligible employees to take up to 12 workweeks of leave in a 12-month period for, among other things, a serious health condition that makes the employee unable to perform his or her job’s essential functions or to care for a family member with a serious health condition. A “serious health condition” is an “illness, injury, impairment, or physical or mental condition that involves” either: (1) “inpatient care” such as an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with such inpatient care, or (2) “continuing treatment by a health care provider.”   

“[T]reatment” includes “examinations to determine if a serious health condition exists and evaluations of the condition.” And, “[t]reatment by a health care provider means an in-person visit to a health care provider.” The Department of Labor added that provision in 2008 to clarify that treatment means an “examination, evaluation, or specific treatment, and does not include, for example, a phone call, letter, email, or text message.”

FAB 2020-8 updates Agency policy to account for telemedicine -- face-to-face examinations or treatment of patients by remote video conference via computers or mobile devices -- which have become increasingly common. Going forward, the Wage and Hour Division will consider a telemedicine visit with a health care provider an “in-person” visit if:

• the visit includes an examination, evaluation, or treatment by a health care provider;
• is permitted and accepted by state licensing authorities; and
• generally, is performed by video conference.

Standing alone, communication methods that don’t meet those criteria, such as a simple telephone call, letter, e-mail, or text message, don’t suffice under the FMLA.

As the pandemic persists and telework continues to be the norm for much of the workforce, we can expect other government agencies that regulate the workplace to issue their own guidance on notice posting and related issues.