The Fair Labor Standards Act imposes certain minimum wage, overtime pay and record keeping requirements on covered employers. Importantly, an employer’s failure to maintain and produce accurate time records significantly increases the employer’s exposure to overtime pay liability.
On May 9, 2011, the U.S. Department of Labor (DOL) released a free iPhone app that gives employees the ability to independently track their work hours and calculate wages earned from one or more employers. The app – which is available in both English and Spanish – allows employees to record hours, break periods and overtime. Notably, the app also contains contact information for the DOL’s Wage and Hour Division and includes a function that allows an employee to email time records to him or herself – and, presumably, to his or her legal counsel.
Cause for Employers to Review Timekeeping Processes and Protocols
According to the DOL, the new app “is significant because, instead of relying on their employers’ records, workers now can keep their own records...”, which “could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.” The intro-duction of the new app, as well as the DOL’s pronouncement regarding its potential importance in wage and hour disputes, highlights the importance of an employer’s maintenance of accurate time records that comply with FLSA’s requirements.
The introduction of the time record app is consistent with recent enhanced enforcement efforts by the Department of Labor’s Wage and Hour Division. During the last several years, the DOL has hired additional investigators and increased its efforts to assist employees through complaint-driven and targeted enforcement. In late 2010, the DOL announced “the Bridge to Justice,” a collaborative initiative between the DOL’s Wage and Hour Division and the American Bar Association. The Bridge to Justice provides an avenue of redress for those individuals with potentially valid complaints that the Wage and Hour Division chooses not to pursue through litigation. Through this initiative, individuals are referred to attorneys with FLSA experience. The DOL also provides complainants and their counsel with access to materials relating to the Division’s investigation of the complaint case.
The DOL says it received more than 35,000 complaints in fiscal year 2009 and more than 40,000 complaints in fiscal year 2010. The new app program – which the DOL may also introduce for other smart phones – will likely result in an increase in Wage and Hour Division complaints in 2011. The Bridge to Justice initiative will lead to more of these complaints turning into litigation, including class and collective actions. Now is the time for employers to review their existing timekeeping processes and protocols.
The Wage and Hour Team within Holland & Knight’s Labor, Employment and Benefits Practice can assist those employers who would like additional details regarding the implications of the DOL’s new iPhone app or its Bridge to Justice program.