New Fact Sheets on Retaliation

Retaliation continues to be the #1 employment law issue.  The U.S. Department of Labor Wage and Hour Division (WHD) has just  issued new fact sheets on the topic of retaliation.

Fact Sheet #77A, Prohibiting Retaliation Under the Fair Labor Standards Act (FLSA), provides general information concerning the FLSA’s prohibition of retaliating against any employee who has filed a complaint or cooperated in an investigation and is available on the WHD website at http://www.dol.gov/whd/regs/compliance/whdfs77a.htm

Fact Sheet #77B, Protection for Individuals under the FMLA, provides general information concerning the Family and Medical Leave Act’s (FMLA) prohibition of retaliating against an individual for exercising his or her rights or participating in matters protected under the FMLA and is available on the WHD website at http://www.dol.gov/whd/regs/compliance/whdfs77b.htm

It's Round-Up-Time! New NJ Wage Law Mirrors Federal Provision

For years, NJ and federal law have differed about when and how and employer can "round" start and stop times.  Under the FLSA, employers who use a time clock could  round start and stop times to the nearest five minutes, tenth of an hour, or nearest quarter of an hour.  This takes into account the practical realization that 100 employees with an 8 a.m. starting  time cannot all punch in at once, nor could they all punch out exactly at 5 p.m.  The federal regulations say rounding practices can’t always favor the employer. Rounding must be neutral or it must favor the employee. 29 CFR Sec. 785.48(b).

Until December 20, 2010, NJ  employers had no option: They had to use exact start and stop times or they had to round in favor of the employee.  Effective December 20, 2010, the NJDOL officially adopted as immediately operative N.J.A.C. 12:56-5.8, which mirrors the CFR provision exactly.  This adoption is expecially important for multi-state employers, who  can now maintain a uniform, nationwide rounding practice and payroll system.


NJ employers who want to use their new right to round down, must also round up. There are several ways to make rounding fair, including:

• Minute-based. For example, say your time clock pays by 15-minute intervals. If an employee punches in at 9:07 a.m., you’d round her start time down to 9:00 a.m. If she punches in at 9:08 a.m., you’d round up the start time to 9:15 a.m. This way, the rounding method will balance out over time.

• Start-stop method. Another option is to round up in the employee’s favor at all starting times. Then, at the end of the shift, round down to the employer’s favor at all quitting times.

H1N1 Flu and Employment Law Issues

The Centers for Disease Control has published a variety of H1N1 resources for employers as part of its effort to slow the spread of this pandemic flu, but employers must also be prepared to address the legal issues that may arise with employees who come down with H1N1 flu, or need to care for family members with the disease.

The federal Wage and Hour Division has just posted information on common issues when employees get the flu and its affect on wages and hours worked under the Fair Labor Standards Act (FLSA) and job-protected leave under the Family and Medical Leave Act (FMLA).

The Equal Employment Opportunity Commission (EEOC) has updated its guidance for employers on workplace preparation strategies for the H1N1 flu. The guidance says that employers may implement infection control measures in the workplace (such as regular hand washing, coughing and sneezing etiquette, and tissue usage) without running afoul of the Americans with Disabilities Act (ADA). The guidance also states that an employer is allowed to survey its workforce in an effort to gather personal information needed for pandemic flu preparation, and provides a sample ADA-compliant survey.

Under the OSHA "General Duty Clause," an employer must provide a place of employment that is free from recognized hazards that cause or are likely to cause death or serious physical harm. OSHA has a variety of resources on pandemic flu workplace preparation and preventive measures.