U.S. Department of Labor Launches a Timekeeping App for Workers
Shortly after her March 2009 swearing-in ceremony, U.S. Department of Labor (DOL) Secretary Hilda Solis announced that there was "a new sheriff in town." In keeping with Secretary Solis's promise to shake things up at the DOL, earlier this week DOL's Wage and Hour Division launched a 21st century initiative that makes it much easier for employees to independently track hours worked for the purpose of calculating wage claim damages. The DOL's newest tool – a smartphone app.
An employee claiming that she has been denied wages owed her under the federal Fair Labor Standards Act (FLSA) generally has the burden of proving that her employer violated the FLSA. If, however, the employer's payroll-related records are inaccurate or inadequate, an employee may satisfy that burden by proving that she has in fact performed work for which she was not compensated and by producing sufficient evidence to show the amount and extent of that work "as a matter of just and reasonable inference." The burden then shifts to the employer to come forward with evidence of the exact number of hours worked by the employee, or with evidence that negates the reasonableness of the inference to be drawn from the employee's evidence. If the employer fails to produce such evidence, a court may award damages to the employee, based on the employee's calculation of the hours worked.
Over the years, courts have allowed plaintiffs bringing wage claims to use a variety of means to reconstruct hours worked, including diaries and logs maintained in the seemingly ever-present spiral notebook. The DOL's new timesheet app will most likely consign such 20th century employee record-keeping tools to the same dust heap of history as the cassette tape recorder (by the way, employers should keep in mind that audio recorder smartphone apps are already available to employees).
The DOL's free timesheet app, which is available in English and Spanish, provides employees with a user-friendly method for tracking regular work hours, break time and any overtime hours for one or more employers. The app also allows users to add comments on any information related to their work hours and view summaries of work hours in a daily, weekly and monthly format with a gross pay calculation. (It also allows users to email those summaries directly from the app.) And, the app includes a link to the DOL website and a function that allows the user to email the DOL directly from the app, in one quick step. Good-bye, spiral notebook.
Employers that expect (or even allow) remote off-shift work through the use of smartphones should take special note of the convenience associated with recording time via the DOL's new app. Class action lawsuits seeking unpaid overtime claims for nonexempt hourly workers who use smartphones to check email and conduct other business outside their regular work hours continue to be filed and are gaining media attention. The DOL app makes it very easy for such employees to log in a time entry immediately after concluding an email exchange.
The DOL app is currently compatible only with the iPhone and iPod Touch, but the DOL has indicated that it plans to explore updates that enable similar versions of the app for other smartphone platforms, such as the Android and BlackBerry platforms. The DOL also announced that it plans to explore updates that include additional pay features, such as tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials and pay for regular days of rest.
In launching the timesheet app, Secretary Solis said that she was pleased with her department's ability "to leverage increasingly popular and available technology." This "popular and available" technology makes it more imperative than ever that employers maintain accurate payroll records as required by federal and state wage laws.
© 2011 Perkins Coie LLP