I'm happy to introduce to you EBN's newest staff member: Associate Editor Brian Kalish. He brings you today's post about a new DOL iPhone app that allows employees to track their own hours. Sound like a nightmare waiting to happen? Some attorneys agree. Keep reading, share your thoughts in the comments and send Brian an email to welcome him (or pitch him a story!). You can reach him at firstname.lastname@example.org. --K.B.
The Department of Labor has launched a smartphone application that allows employees to track their own hours. Yet, some employment lawyers say the program encourages a separate set of books and possible “outright mischief.”
The application is available to Apple iPhone and iPod Touch users in English and Spanish and allows them to “determine the wages they are owed,” by tracking regular work hours, break time and any overtime, according to the Labor Department.
An employee being able to track their own information is significant, the agency says, as it could “prove invaluable evidence during a Wage and Hour division investigation when an employer has failed to maintain accurate records.”
“This app will help empower workers to understand and stand up for their rights when employers have denied their hard-earned pay,” Labor Secretary Hilda L. Solis adds.
Yet, tangible results of the application remain to be seen, says Robin Weideman, a partner who specializes in employment litigation at the Sacramento, Calif. office of Carlton DiSante & Freudenberger LLP.
While the application allows employees to keep track of their hours in a way that an employer can’t monitor, “it doesn’t necessarily mean the employee is working at [that] time,” she says. “It could open up conflict between the employers and employees [record of hours].”
Lawrence McGoldrick, on counsel in the Atlanta office of employment law firm Fisher & Phillips LLP agrees that it opens up the possibility of mistakes and mischief. “Keeping track of hours is a hard thing even for employers,” he says, noting travel time, breaks that do and don’t count as worked hours and other time that could be excluded. “All those rules are a nightmare for employers, [and] for employees who aren’t sophisticated; it will be an interesting challenge.”
McGoldrick, who works for a firm that represents employers, notes that some of them are concerned their workers could also be mischievous in keeping their hours and have a running all-day clock.
If a wage dispute came to a trial, it would be an issue of fact. In a normal case, the burden of proof falls on the litigant, typically the employee, he says. Yet, if the employer fails to keep accurate records, which they are required by law to do, or they are sloppy, that failure could shift the burden of proof onto the employer who would then have to disprove what the employee is saying, McGoldrick says, potentially using information from their smartphone applications.
As a result, he encourages employers to protect themselves including keeping accurate time records and possibly putting a written statement on time records that if employees have any questions, they must report them.
Labor says it is currently exploring expanding the technology to other smartphone platforms, such as BlackBerry and Android, and also adding the ability to track tips, commission, deductions and holiday pay, among others, to the software, which can be downloaded here.
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