The FLSA “Rounding Rule” – Well-Rounded Procedures to Reduce Class Action Risks

Many employers round the time of arrival or departure for non-exempt employees to the nearest five minutes, tenth of an hour, or quarter of an hour. Many of those employers have rounded time for years without thinking about whether doing so is legal. Recently, a number of class action suits have been brought against employers based on their rounding practices. Those suits have highlighted the fact that, while the Fair Labor Standards Act (FLSA) does allow rounding of time, there are very specific requirements that must be met to do so.

The FLSA requires that employers pay their workers for every hour they're on the job. However, the Department of Labor, which administers the law, recognizes that it's impractical to count every individual minute of work time or to require that employees start and stop working on exact increments. As a result, the regulations allow for rounding as long as it is done neutrally or favors the employee. In other words, the employer must round up and also round down.

A New Labor Nominee, but Future of FLSA Exempt Salary Rule Remains Uncertain

On Thursday, President Trump named Alexander Acosta as his nominee for U.S. Secretary of Labor following the withdrawal of his initial choice, Andrew Puzder. Mr. Puzder withdrew his name from consideration after he apparently lost support from several Republican senators necessary for his confirmation.

Mr. Acosta is Trump’s first Hispanic nominee and has previously been confirmed by the Senate for multiple federal government positions. Mr. Acosta has not been as outspoken on employment and labor issues as Mr. Puzder, making Mr. Acosta’s confirmation less controversial and more likely. Mr. Acosta’s primary labor and employment experience comes from his former service as a member of the National Labor Relations Board.

Supreme Court Nominee Neil Gorsuch: How Might He Impact Labor and Employment Law at the Nation’s Highest Court?

On January 30, President Trump nominated Neil Gorsuch to fill the Supreme Court seat that has been vacant since Antonin Scalia’s sudden passing in February 2016. You may recall that President Obama previously nominated Merrick Garland to fill this seat, but he was never confirmed because Senate Republicans refused to hold a confirmation hearing.  Gorsuch is currently a judge on the U.S. Tenth Circuit Court of Appeals, which has jurisdiction over federal court cases in Colorado, Utah, Oklahoma, New Mexico, Wyoming, and Kansas. He received his undergraduate degree from Columbia University in 1988 and his law degree from Harvard University in 1991. Interestingly, Judge Gorsuch was in the same law school class as President Obama, who also received his undergraduate degree from Columbia.

The similarities between Judge Gorsuch and President Obama appear to end at their education. Judge Gorsuch is known for being a conservative legal scholar and jurist, and he has praised the late Justice Scalia’s strict constructionist judicial approach. Judge Gorsuch’s judicial decisions reflect this philosophy, as he generally has taken pro-employer stances in his labor and employment cases before him.