A new smartphone app increases the risk that employers will face wage and hour disputes. If your organization has not audited its timekeeping practices recently, we recommend that you do so in order to avoid claims from employees being encouraged to track their own hours by the government.
On May 9, 2011, the Department of Labor ("DOL") launched its first smartphone application, or "app." DOL-Timesheet is a free application that allows non-exempt workers to track and store their weekly hours remotely for one or more employers. With this app, employees can create their own record of the time they work, independent of those the employer keeps. Not only does the app make it easy and convenient to create a record, but the app calculates wages owed based on the number of hours worked. It also includes a warning screen if the employee is earning less than the federal minimum wage. Additionally, the app uploads the data into a summary that the employee can view on a daily, weekly, or monthly basis, and the employee can email the data directly from the smartphone as an excel spreadsheet attachment.
The app is available in English and Spanish, but it is currently compatible with the iPhone, iPod Touch, and iPad only. The DOL is looking into rolling out versions for other smartphones such as the Android and Blackberry. Additionally, the DOL is looking into enhancing the app so that it can track and store information regarding tips, commissions, bonuses, deductions, holiday pay, weekend pay, and shift differentials. For those workers without an iPhone or iPod Touch, the DOL website provides a printable work-hours calendar in both English and Spanish. The calendar provides information on how to file a wage and hour claim.
While this might seem like just another smartphone toy, employers should take this app seriously. Of course, employees have always been able to maintain separate records of their time to use in a potential wage and hour dispute. Now, employees can provide clear and accessible records of their hours to the DOL via email by simply clicking "send." And they will. The ubiquity and ease of this technology will only mean that more employees will file wage and hour claims.
Indeed, the app encourages employees to file complaints and provides the Wage and Hour Division's contact information. This is a serious concern because, in a wage and hour dispute, employers have the burden of producing documentation proving the hours the employee worked. Otherwise, the Wage and Hour Division relies on the employee's assertion of what he or she believes is owed. In order to counteract the employee's app records, employers must maintain organized and accurate timekeeping records consistent with applicable law. Additionally, the app does not take into account other factors that might affect an employee's salary such as taxes or other deductions, which will inevitably lead to confusion and disputes. Accordingly, employers should make sure they are in a position to contradict the employee's wage claim effectively.
To further discuss the implications of this new app or to seek guidance on auditing your organization's timekeeping practices, please contact Michael Furey, Scott Ohnegian, or Dan Zappo of Riker Danzig's Labor & Employment Group.
