Jun 02, 2011

There's An App For That

By: Paul Ebeltoft

Days after I wrote about overtime claims enabled by use of the ubiquitous smartphone/pda, the United States Department of Labor (DOL) confirmed that employers should be concerned. DOL brought wage calculation into the 21st century by creating and launching its first application for a smartphone. Called DOL – Timesheet, it’s a free download currently compatible only with an iPhone or the iPod Touch. The techies at DOL are working to remedy that limitation. Expect Android and Blackberry applications soon.

What does this little wonder do? Its description on the iTunes says it all:

“This is a timesheet to record the hours that you work and calculate the amount you may be owed by your employer. It also includes overtime pay calculations at a rate of one and one-half times (1.5) the regular rate of pay for all hours you work over 40 in a workweek.”

Well … almost all. The DOL news release dated May 9, 2011 brags:

“This new technology is 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.”

Will your employees use it for tracking overtime hours enabled (or required, it seems) by carrying their smartphones and pdas everywhere? You bet. One day after the DOL announcement, a post by Molly DiBianco on the Delaware Employment Law Blog enthused that the app’s link from record to email is a helpful feature.

“[I]f an employee sends a series of emails from his iPhone at home, after the end of the normal business day, this may be a helpful way for him to record that time worked and communicate it to his employer.”

If the employer misses the point of these Timesheet emails, the app links to the U.S. DOL Wage and Hour Division including access to instructions about how to lodge a complaint.

Comments in the blogosphere since DOL’s announcement have ranged from the merely cautious to the panic-stricken.

“I cannot overstate the significance of this story [about the release of DOL – Timesheet]. … If you do not know whether your wage and hour practices pass muster under the Fair Labor Standards Act, you are sitting on a bomb waiting to detonate. And, the DOL continues to provide employees with the match to light the fuse,”

complained Jon Hyman in the Ohio Employer’s Law Blog.

WHAT YOU CAN DO.

Mr. Hyman’s comment is true in the sense that, if your business practices are non-compliant with the Fair Labor Standards Act, you are courting disaster. However, whether the enforcement bomb goes off in your workplace is not because of the creation of the DOL – Timesheet app. It is because of your company’s non-compliance. Opinions about DOL’s enforcement tools and practices will fuel many a discussion. Nevertheless, decrying the government’s use of technology to root out labor law non-compliance should not be HR’s primary response. Understanding the law and technology and using this knowledge to help your company maintain a compliant workplace should be.

In my earlier writing on the subject, I gave six steps HR can take right now to protect your company. The DOL announcement may makes it more critical that you consider them. One of these was:

A prima facie claim for unpaid overtime switches the burden to the employer to produce “adequate records” showing that it tracks and pays all working hours appropriately. Review your record-keeping practices and expand them to include reporting of after-hours work by non-exempt employees. Some pda records are easily available. Others are not. Consider how best to track these.

Here’s a radical thought: Why not require use of the DOL – Timesheet app for all of your employees who are authorized (remember, I suggest limiting the number of these) to conduct after-hours work and who are correctly classified as non-exempt? Your company will have records, instead of anecdotal information from your employee, with which to document (and pay for) all claims. This is better than complaining about the march of technology while paying wages, attorneys fees or double damages, isn’t it?


Reprinted with permission from an article submitted for publication in the June 2011 Southwest Area Human Resource Association newsletter.