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DOL Creates Smartphone App for Employees to Track Own Hours of Work: What if Their Records Don’t Match Yours?

The U.S. Department of Labor (DOL) recently announced the launch of a free application for smartphones which is designed let employees independently track the hours they work and determine the wages they believe they are owed. Specifically, the app allows users to track regular work hours, break time and any overtime hours.  It also contains other materials about wage and hour laws and DOL contact information; in case an employee’s own records do not match those of his/her employer. 

According to the DOL’s news release regarding the app, “[t]his new technology is significant because, instead of relying on their employers' records, workers now can keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.”  Secretary of Labor Hilda L. Solis added, "This app will help empower workers to understand and stand up for their rights when employers have denied their hard-earned pay."  

It is unclear at this point how the DOL plans to use this information during an investigation of employee claims about unpaid wages or failure to maintain accurate employment records.  However, as noted above, the DOL has said that the app information could be “invaluable” in such situations, suggesting that the information will be viewed as credible evidence of wages owed. 

Given the potential for the widespread use — and possible abuse — of this app, employers (especially those in New York) must be prepared.  Under New York law, for example, if an employer does not have accurate time records for an employee, the State DOL will presume that any records that an employee produces are accurate.  This is often comes into play when an employee has been misclassified as exempt from the overtime pay requirements of the Fair Labor Standards Act (FLSA).  As you might imagine, this app could be misused by an employee to claim wages owed for many hours (and particularly, overtime hours) not actually worked over a period of years.  

In addition, the new app could effectively end the long-standing DOL wage and hour enforcement principal which allows employers to exclude, from total hours worked, small increments of time that cannot be effectively tracked by a company’s timekeeping methods (the so-called “de minimus” rule). With the DOL’s new app, employees will almost certainly be keeping track of those small increments of time just after clocking in or just before quitting time.

Employers should work closely with their employment attorneys to make sure that all employees are properly classified as exempt or non-exempt under the FLSA and that accurate time records are kept for all employees (for whom records must be kept under State and Federal law).  Consistent and meticulous adherence to proper wage payment and recordkeeping practices will be the only way to effectively combat the likely abuse of the new app.   

If you have any questions regarding the foregoing or need further assistance in this regard, please feel free to contact us.

 

Excerpted from the June 2011 edition of  "Employment Law Matters".  To view the entire newsletter, please click here.