In a latest example of the more active stance of the U.S. Department of Labor (DOL) in enforcing the federal wage and hour laws, the DOL recently announced its launch of a new timesheet application for smart phones. 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.
In its announcement, the DOL stated that the app will enable employees to "independently" track the hours they work and determine the wages they are owed. Users can record regular work hours, break time and any overtime hours for one or more employers. The DOL believes this new technology is significant, because for those workers who use the app, the DOL will not have to rely on employer records in the context of a Wage and Hour Division investigation. The free app is currently compatible only with the iPhone and iPod Touch; however, the DOL has indicated that it is exploring updates for compatibility with other smart phones such as Android and BlackBerry phones.
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.
This new technology underscores the need for employers to take careful steps to ensure that their record-keeping policies and practices comply with federal and state wage and hour laws. In particular, employers need to ensure that all of the time employees spend providing services – including time on and off the employer's premises – are counted toward hours worked in a particular workweek. Employees should be encouraged to report all of the hours they work to their employers (rather than keeping a separate tally to be used to support a future claim). Employers will also need to be prepared to defend the accuracy of their own records in the event of a dispute with an employee or the DOL.
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