Jumping on the smartphone app band wagon, the U.S. Department of Labor (DOL) recently announced the launch of its first smartphone app, an electronic timesheet to help employees independently track hours worked and determine the wages they believe they are owed.
How it Works
The app is available in English and Spanish and currently only for iPhone, iPad, and iPod Touch devices. It allows users to track regular work hours, break time and overtime hours for one or more employers. Users input their hourly rate of pay, and the app will calculate the amount of wages supposedly owed to the worker. Users can also add comments related to their work hours; view a summary of work hours in a daily, weekly and monthly format; and email the summary of work hours and gross pay as an attachment to their employers. In addition, the app gives the user quick access to a glossary, information about wage and hour laws, and contact information for the DOL through links to the DOL’s web page for the Wage and Hour Division.
The DOL is exploring updates to its free app, which could enable similar versions for other smartphone platforms, such as Android and BlackBerry, and other pay features not currently included; such as tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials and pay for regular days of rest.
For workers without a smartphone, the DOL’s website includes a printable calendar for work hours in English and Spanish to track rate of pay, work start and stop times, and arrival and departure times. The calendar also includes information about workers’ rights and how to file a wage violation complaint.
What Does This Mean For Employers?
The DOL touts its new technology as “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.”
So is this app helpful or problematic for employers?
In my opinion, as an attorney who handles wage and hour litigation this app poses a number of concerns. Under federal and state law, the burden is on the employer — not the employee — to maintain accurate time and pay records. The DOL appears to assume that the worker’s app will be more accurate than the employer’s records. That is not necessarily the case. The app could be abused by workers who “clock in” on the app before they actually start work or clock out after their actual stop time. Employees may also inadvertently fail to accurately record rest and meal breaks. There is also the question of when are employees claiming that the break started and stopped. Did it start when they left their work station, arrived in the break room, left the building or started lunch? Unless trained, employees are likely to have such discrepancies in personal smartphone records.
As an employer what can you do? Consider amending your employee handbook and/or pay policies to
- Require employees to review their time sheets or records each week with their supervisors, and initial or sign off that the records are accurate.
- Encourage employees to come forward if they believe their time sheet or wages have been calculated incorrectly, and supervisors should be trained on the policy. That way, the employer will know quickly if the worker believes there is a pay discrepancy and can address the issue or explain how the time is recorded and paid.
If an employee is using the app as “big brother” to monitor the employer, having solid policies in place may prevent the employee from coming back months or years later, using the app as evidence to support a wage-hour class action or DOL enforcement action. If the employee had to sign off that his or her time sheet was correct, it will be difficult to claim at a later date that the information in the app — not the time sheet — is the “correct” information.
Interestingly, the app itself includes a disclaimer of which employers and employees should be aware:
Disclaimer: This App is designed as a reference tool. It does not include every possible situation encountered in the workplace. Some situations not addressed in this App may yield a different result in the calculation of total pay. These include, but are not limited to, situations where, for example, the employee is not covered by the Fair Labor Standards Act or is exempt from the minimum wage and/or overtime pay requirements of the FLSA. Further, the conclusions reached by this App rely on the accuracy of the data provided by the user. Therefore, DOL make no express or implied guarantees as to the accuracy of this information.
Regardless of the fact that the app raises concerns, employers should not prohibit employees from using it at work as its use may constitute protected activity under the Fair Labor Standards Act or other federal or state laws. That said, if an employee is using company-provided equipment, the employer may enforce existing information technology policies regarding the installation of apps on company-provided smartphones. If you want to take a look at the app, go to the DOL’s website at http://www.dol.gov/whd and click on “Download our App!”
Are your company’s policies ready to deal with this app? What changes might you need to make to your policies in order to ensure you are ready for this new technology?