Safe Harbors to Communicate Digitally with Employees


It goes without saying that employers seek to minimize paper flow to employees, and employees hate to read paper notices from employers.   Further, it is very common for employees to trash notices that are attached to paychecks even before they are read.

Employees are legally able to use digital systems for employees who have regular access to computers and who use computers for their job.

But what about employees who do not have computers on their desk at work, or who do not regularly communicate with email.

The Department of Labor, in 2002, mapped out several steps that must be taken in order to be in a DOL Safe Harbor for employee communication of mandatory government notices.    They are listed below:

An employer must send a statement to explain the communication that explains:

  • Types of documents that will be provided electronically
  • Consent can be withdrawn without charge
  • Procedures for withdrawing consent and updating information
  • Right to request paper copies, and
  • “Any hardware and software requirements for accessing and retaining documents”

After the statement, the employee will need to affirmatively consent to electronic disclosures.

  • The consent needs to be “in a manner that reasonably demonstrates the individual’s ability to access information in the electronic form that will be used.”
  • The participant needs to provide “an address for the receipt of electronic furnished documents”

In other words, having an employee sign a consent form is not enough to allow for the electronic government notice distribution.

Source:  Linda Mendel, Vorys, Sater, Seymour, and Pease, LLP  Webinar 10-7-15


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