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Ask the Attorney: Answers to Your Questions About Remote Worker Posting Requirements

6/27/2016

By Ashley H. Kaplan, Esq.,
Senior Employment Law Attorney

Here's how to ensure your labor law posting station is complete with EEOC, Minimum Wage (FLSA), Military Rights (USERRA), OSHA, EPPA & FMLA compliance posters.

The expert legal team from Poster Guard® Compliance Protection hosted a webinar on “Special Posting Requirements for Businesses with Remote Workers” on March 10, 2016. The one-hour presentation covered the rules surrounding mandatory federal and state notices for off-site workers, including home-based employees, telecommuters, field salespeople and other remote workers. Since the webinar first aired, Ashley Kaplan, Esq., has handled numerous questions from participants.

Here are a few of those questions that can help your business:

Q: We have employees who work in the office most days, but also from home occasionally. Should we treat them as remote workers?

A. Both the Department of Labor (DOL) and the Equal Employment Opportunity Commission (EEOC) have provided examples of when employers should provide electronic postings to remote employees. The EEOC states that employees who don’t visit your workplace on a regular basis should receive electronic postings. The DOL responded to a similar employer question, “My employees must report to the main office only once a week. Can I display posters there?” with the answer, “yes.” Given this information, our legal team has determined that traditional postings are sufficient for any situation where an employee reports to your physical location at least three to four times a month. If a remote employee doesn’t visit the office this frequently, however, you should provide the postings in an alternative format, such as electronically.

Q: Would contractors working in government worksites be considered remote or non-traditional?

A. That depends. If the worksite has walls, the physical postings must be displayed. If there are no walls, or if you have no legal control over the postings displayed at the worksite, you should consider other alternatives. First of all, you should include in your contracts that the government worksites are responsible for complying with all posting requirements. Regardless, you are responsible for making sure the postings are properly communicated, so you should implement additional measures to ensure compliance. If the employees regularly communicate with the business via email and have Internet access at the off-site worksite, you can provide the postings electronically. If these workers don’t have this access, consider the binder solution for non-traditional worksites.

Q: What about state-specific posters? Do these apply to the state where the remote worker lives, or to the state of the main business location?

A. Unfortunately, it’s not always clear which state laws apply to employees when they cross geographic lines. Most basic employment rights (minimum wage, overtime, safety issues, etc.) are governed by the laws where an employee works, not lives. Yet, depending on how your company is structured, your out-of-state employees may be covered by both the state laws of your corporate office AND the state laws where they conduct work. Because it depends on so many factors specific to each business relationship, and there is no clear law or authority that controls in all cases, we recommend as a best practice that you provide both sets of state-specific posters to remote employees.

Q: I worry about remote workers saying they didn’t receive the labor law postings — and our business being unprotected. Wouldn’t it be their word against ours?

A. That’s a legitimate concern. You never want to be caught in a situation where an employee says, “I didn’t know about XX or didn’t receive XX.” But with a full-service posting provider like Poster Guard Compliance Protection, you’re covered. Not only do your remote employees receive every mandatory posting change automatically via email, but they also must acknowledge receipt of the posting. Poster Guard tracks and maintains complete records of these acknowledgements, so you always have proof of your compliance.

 

Ashley H. Kaplan, Esquire is the Senior Employment Law Attorney for HRdirect®. Ashley handles all aspects of legal compliance and oversees the teams responsible for researching and developing Poster Guard services to meet our customers’ diverse needs. Before joining HRdirect, Ashley practiced law with a national firm representing employers exclusively in labor and employment-related matters. With more than 20 years of experience as a labor and employment attorney and litigator, she has successfully defended businesses of all sizes in federal and state court and government agency proceedings. She also has trained hundreds of employers on how to manage HR compliance matters to avoid legal trouble.​

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