Earlier this month, the Department of Labor (DOL) took an aggressive stance toward empowering employees to better represent themselves in wage and hour claims by issuing the new timesheet app for smartphones. This move shows that the DOL is making good on its December 2010 promise to more aggressively enforce employers’ FLSA bookeeping requirements. The take-away? Employers must make every effort to ensure FLSA compliance. Here is what some of the top employment lawyers are saying about this trend:
Timekeeping? There’s an App for That! (Ruskin Moscou Faltischek)
“These records will become particularly significant in scenarios in which employers do not maintain complete and accurate timekeeping records. In such a scenario, an employee’s version of his work hours and wages owed, which may now be readily accessible through their smartphone, may be relied upon by the Department of Labor. Indeed, in the press release announcing the launch, the Department of Labor indicated, ‘This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.’ Further, Secretary of Labor Hilda L. Solis stated this ‘app will help empower workers to understand and stand up for their rights when employers have denied their hard-earned pay.’ “ Read more »
USDOL Facilitates More Secret Time Records (Fisher & Phillips LLP)
“Once again, DOL is encouraging employees to keep what amounts to a separate set of books. There is great potential here for needless mistakes or misunderstandings, or even for outright mischief on the part of some. For example, most employees have no expertise in what is and is not FLSA worktime, and it is likely that ‘conventional wisdom’ will lead many to record time in this app that does not count as compensable FLSA ‘hours worked’.” Read more »
DOL Launches “App” To Track Hours (Foley Hoag LLP)
“The purpose of this ‘app’ is to enable employees who believe they are being misclassified as ‘exempt’ from the overtime requirements or are not being paid for all of the hours they have worked to keep a separate ‘shadow’ record in order to support a later claim for wages owed…Among other things, the app will enable workers to more easily track time worked while not on the employer’s premises.This could be particularly useful for non-exempt employees in tracking the time they spend working remotely on a smart phone, such as reading and sending e-mails and performing other work-related tasks. The app would allow the employee simply to activate the electronic timesheet before the employee starts working on the smart phone, and then deactivate it when the work is complete. With the press of a button, the employee can create a spreadsheet showing the wage calculation for any time period.” Read more »
DOL Timesheet App: Encouraging Wage/Hour Disputes? (Davis Wright Tremaine LLP)
“Recommendations for employers:
Ensure that time recording systems are consistent and accurate.
Require employees to verify/certify the accuracy of time records used for payroll purposes.
Encourage employees to promptly report any pay problems.
Implement formal internal complaint systems if you have not already done so. Internal complaint systems can diffuse problems arising from honest mistakes and may help insulate you from liability or enhanced damages if an investigation or lawsuit develops.
Don’t prohibit employees from using the app on personal devices not otherwise used as part of job duties; such a prohibition could violate state or federal law (including the Fair Labor Standards Act).
You may regulate the use of handheld devices provided to employees for business purposes, such as prohibiting the download of applications or programs not provided by the employer and allowing the employer to access information contained on such employer-owned devices (assuming such policies are clearly communicated and uniformly enforced). However, the current law is not clear as to what extent an employer can restrict the use of employee-owned handheld devices that are sometimes used for business purposes.” Read more »
There’s An App for That (Miller & Martin, PLLC)
“Not only is it the employer’s responsibility to keep accurate records, it should also be your goal. Being able to show that employees follow your recordkeeping procedures, that there is limited access to time records with a limited number of users who can make adjustments to these records, that employees are required to report any known hours worked and/or other payroll discrepancies, and that any and all time record changes can be and are tracked is essential to defending a claim by an employee that he has worked more hours than he has been paid. Even with all that, it will be telling to see how this new technology comes into play when there is a disparity between an employer’s records and the information contained on the employee’s iPhone.” Read more »
“The development and launch of the DOL-Timesheet App signals a continued and aggressive commitment by the WHD to enforce wage and hour laws across the country—but it also reflects a not-so-subtle shift in the WHD’s tactics. Aware that it has limited capacity for investigation and enforcement (especially in these times of budget cuts), the WHD is pushing measures, such as the DOL-Timesheet App, that essentially ‘deputize’ employees, giving them the power and the know-how to determine whether their employers are complying with applicable wage and hour laws. In light of these measures, it is critical that employers take steps to ensure compliance with federal and state wage and hour laws and ensure the accuracy of their timekeeping systems.” Read more »
DOL’s New Smartphone App Is a Good Reminder to Employers to Ensure Their FLSA Recordkeeping Is in Order (Costangy, Brooks & Smith, LLC)
“It will be interesting to see what the courts will do with employee time records that were maintained via the new app. Presumably, “app records” will be given the same weight as any other employee record of hours worked. However, it will take some time before ‘FLSApp cases’ make their way through the court system. We expect to see more quickly how WHD will respond to FLSA complaints that are supported by records created via the new app. Employers may be hearing soon from WHD investigators with questions about why the employer’s time records differ from employee records created via the new app. Presumably, some variation between the competing sets of records is to be expected, but if the differences are significant, it will be interesting to see which set of records DOL will be more likely to accept as an accurate reflection of hours worked. Stay tuned…” Read more »Google+