Using Electronic Postings to Comply with H1B Notice Requirements

The U.S. Department of Labor (DOL) has issued a guidance memorandum on how electronic postings can be used to satisfy an H1B employer’s posting requirements when submitting a labor condition application (LCA).

General Posting Requirements

Prior to filing an H1B petition, the employer first must obtain a certified LCA from the DOL. The employer also, typically, must post a notice at the work location that informs affected workers of certain key pieces of information, such as the number of H1B workers being sought, the wages offered, and the duration of the intended employment. This notice can be either a physical notice or electronic.

Electronic Notices Must be Readily Available to All Affected Employees

The memo makes it clear that, in order to properly meet the requirements, electronic notice to affected employees must be as effective as proper physical notice. The memo states “a petitioner who chooses to electronically notify must make the notification readily available, as a practical matter, to all affected employees.” It also states, “[A]n employer may accomplish this by any of the means it ordinarily uses to communicate with its workers about job vacancies or promotion opportunities, including through its ‘home page’ or ‘electronic bulletin board’ to employees who have, as a practical matter, direct access to these resources.” The memo further clarifies that eMail or company newsletters are also permissible means of notification. However, electronic posting is not permissible if employees lack practical computer access. In that case, hard-copy posting would be required.

Third-Party Work Sites

The memo reiterates that, if an employee is working at a third-party worksite, electronic notification of only its own employees is not sufficient to meet the posting requirements. All affected workers at the third-party location must receive the effective notification. To accomplish this using electronic notification, the notice can be published on the H1B petitioner’s public website, “… so long as the affected workers at the third-party worksite are aware of the notice and are able to determine which notice is applicable to their worksite.” The memo goes on to provide examples of how this may be achieved, such as by posting a link to the electronic notice on the third-party employer’s intranet site.

Conclusion

The memo reconfirms that either physical or electronic notification can be used to satisfy the H1B notice requirements. But, whether a petitioner chooses to post electronically, or use hard copies, or through a combination of the two, care should be taken that effective notice is properly given to all affected workers.

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