Department of Labor Launches Controversial App to Track Hours Worked

The U.S. Department of Labor has proudly announced the launch of its first application for smartphones, described as “a timesheet to help employees independently track the hours they work and determine the wages they are owed.” Users can track regular work hours, break time and any overtime hours they work for one or more employers, according to the DOL press release on the application. The free “app,” launched May 9th, is compatible with iPhone and iPod Touch and is available in English and Spanish.

The Department predicts that the workers’ information “could prove invaluable” during a Wage and Hour Division investigation of employers accused of failing to maintain accurate time records. Indeed, the app will allow workers to “email the summary of work hours and gross pay as an attachment” to the Department’s investigators. The app provides a “[g]lossary, contact information and materials about wage and hour laws through links to the Web pages of the department’s Wage and Hour Division.” According to Secretary of Labor Hilda L. Solis, “This app will help empower workers to understand and stand up for their rights when employers have denied their hard-earned pay.”

The Department also is considering future updates to enable use on other smartphone platforms, such as Android and BlackBerry, and to capture information on kinds of pay not currently addressed, “such as tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials and pay for regular days of rest.”

Why is the Department Doing This?

At first blush, the concept behind the app seems innocuous enough: providing workers with a means of recording their working hours to help facilitate proper payment of wages under the law. Where employers fail entirely to maintain accurate time records, this information can be very important in an enforcement proceeding or in litigation. In the absence of reasonably accurate records on the employer’s part, contemporaneous information recorded by workers may seem to be persuasive evidence regarding entitlement to back wages.

The reality is more complicated. For starters, the fact that the Department is devoting resources to creating this type of app sends a message that its leadership think that a substantial number of employers, and perhaps employers in general, fail to keep reasonably accurate time records. This app, in effect, encourages workers to maintain a parallel set of books because their employers supposedly cannot be trusted.

The next question is what weight the Department will give to these employee records. Historically, if an employer used a reasonable system to track employee hours, the system was given significant weight in disputes over the calculation of hours worked. But if workers maintain daily records of the time they supposedly worked, will the Department ignore employers’ time records altogether and just rely on the workers’ records?

Advice for Employers

Paul DeCamp, former Administrator of the Department’s Wage and Hour Division and now national chair of the Wage and Hour practice at Jackson Lewis, observes, “This app underscores the need for employers to maintain accurate time records for their non-exempt workers.” “Employers,” he cautions, “may want to build into their policies a requirement that if workers’ time records show any sort of disparity from the employer’s time records or the workers’ pay stubs, then the workers must report that disparity immediately and submit those records to the employer in order to ensure accurate wage payments.” He adds, “The last thing an employer wants is to be blindsided by years’ worth of detailed daily time records showing significantly more time worked than was actually paid. It is in everyone’s interest for workers to be paid correctly and for any disagreement regarding hours worked to be resolved in real time rather than months or years after the fact.”

Employers are reminded that their timekeeping procedures and systems should be audited periodically to ensure they are recording employees’ time worked accurately. Jackson Lewis attorneys are available to answer inquiries regarding this new development and assist employers in self-audits to ensure compliance with wage and hour laws.