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Jonathan A. Segal
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Last week, the DOL issued guidance on how employees can use smartphones to keep track of their time (which could aid employees in investigations and or lawsuits).  You have to read it yourself to believe it:

The U.S. Department of Labor announced 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.  Available in English and Spanish, users conveniently can track regular work hours, break time and any overtime hours for one or more employers.  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.

The free app is currently compatible with the iPhone and iPod Touch.  The Labor Department will explore updates that could enable similar versions for other smartphone platforms, such as Android and BlackBerry, and other pay features not currently provided for, 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 Wage and Hour Division has a printable work hours calendar in English and Spanish to track rate of pay, work start and stop times, and arrival and departure times.  The calendar also includes easy-to-understand information about workers’ rights and how to file a wage violation complaint.

The DOL also has proposed an old fashion hard copy calendar for employees to use to record their time.  See http://www.dol.gov/whd/FLSAEmployeeCard/calendarR5Web.pdfse.

The DOL also includes guidance on what constitutes time worked.  For example, the DOL states: “Generally, you should know that your employer must keep records of all wages paid to you and of all hours you worked, no matter where the work is done.”

Some have interpreted the recent DOL guidance as not simply an advisory on the law but rather as encouraging employees to file wage and hour complaints and providing them with exhibits to do so.  Regardless of the DOL’s intent, the effect likely will be to increase the number of claims by employees for hours allegedly worked but not paid.

We already are in the middle of a wage and hour pandemic.  Consider the following:

·        The number of FLSA cases filed per year has nearly quadrupled since the late 1990’s.

·        The number of FLSA cases filed in federal district courts has more than tripled in the    past few years, from 1,920 cases in 2000 to 6,754 cases in 2006.

·        DOL back wages collected in 2010: $175,652,665

·        Employees receiving back pay wages in 2010: 208,615

·        DOL concluded cases in 2010: 26,815

·        FLSA cases filed in district courts in 2010: 6,081

·        FLSA cases filed so far in district courts in 2011:  2,278 (as of May 16).

Expect the recent actions of the  DOL  to accelerate the trend.

While most employees are honest, it would be naïve to assume all are.  Dishonest employees may use the new DOL tools to claim that they worked hours that they did not.

It is absolutely critical that employers have complete and accurate records of all time worked by employees and that employers pay employees for such time.  If an employee works time that is unauthorized, pay him or her for the work but then counsel/discipline him or her for doing what was not authorized.

In particular, just as the DOL has encouraged employees to do, employers need to address work “no matter where it is done.” More specifically, employers should make clear whether and when employees are permitted to work remotely and, if so, how they should record their time so that they can be properly paid.

Moreover, employers need to make sure that employees know that they cannot do any work off the clock and whom they should contact if any manager or supervisor requires or even suggests that they work off the clock.  Managers need guidance too on the need to contact HR or Payroll if they know or have reason to believe an employee is working of the clock.

If you are not sure whether you should review your wage and hour policies, practices and communications to make sure they are complete and compliant, please re-read this blog.

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an attorney-client relationship.

About Jonathan A. Segal
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Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .