On May 9, 2011, the U.S. Department of Labor issued a news release announcing the launch of its first application for smartphones – a timesheet to help employees independently track the hours they work and determine the wages they are owed. The App, called “DOL – Timesheet,” is available to download for free on iTunes.
Since the DOL’s announcement, blogs and tweets have been flying about this new tool developed by the DOL Wage & Hour Division (WHD) as part of its ongoing efforts to “achieve compliance with labor standards to protect and enhance the welfare of the Nation’s workforce.” In other words, the DOL WHD has been cracking down on employers who are not in compliance with the Fair Labor Standards Act (FLSA) with respect to the proper payment of wages (minimum wage, overtime), classification of employees (exempt vs. non-exempt), and recordkeeping, and many are viewing this new iPhone App as just another tool in the DOL WHD’s arsenal in the war against employers (the App contains a link to the DOL WHD and information on how to make a complaint).
Amidst the naysaying, there just may be some potentially positive aspects of the new App for employers (who, by law, are responsible for maintaining accurate and complete time and pay records):
- Employees Now Have More Electronic Discovery Obligations. Employees who install and use the “DOL – Timesheet” App now have their own electronic data and information that they must maintain and preserve in the event a claim arises. Most cases involving the preservation (or improper destruction) of electronic data involve employers getting sanctioned for failing to put proper litigation holds in place and/or destroying relevant information. But now, with employee-maintained programs and Apps, the balance of the electronic discovery playing field may be becoming a little more even. Where employees fail to preserve and not destroy any relevant electronic time and wage records in their possession, employers may be in a position to move for sanctions up to dismissal of a claim depending on the circumstances and level of spoliation. One can also only hope that with the new electronic tools available to employees, courts will begin to crack down on Plaintiff’s lawyers for not properly counseling their clients on “litigation holds” to ensure that the individuals preserve relevant electronic information, including personal emails, text messages, Facebook information, and now, iPhone data.
- We May See Less ‘Cocktail Hour’ Stories About Hours Worked. Documented time records are far better than relying on an employee’s memory or guesswork at the amount of work actually performed. Everyone knows that guy at the cocktail party who says he “works like a dog…80 hours a week!” is exaggerating a bit. Still, when the DOL WHD investigates wage and hour complaints, and there is a lack of complete records for whatever reason (e.g., the employee is claiming off-the-clock work or it’s a case involving misclassification of an exempt employee), they rely on these very types of ‘cocktail hour’ statements by employees, which generally operate to provide windfalls to employees. Now, where employees may be tracking hours and wages on their iPhones, here’s hoping that employers will be dealing with fewer verbal statements describing an actual 48-hour week as an 80-hour one.
It remains to be seen how much use this new DOL – Timesheet App will get and how it may play into wage and hour claims and/or lawsuits. But, it will be interesting to follow and see if employers can make lemonade out of lemons by effectively utilizing this new tool as an additional discovery device to possibly find and use key information that could make or break a case.