The Department of Labor has entered the digital age with a splash, and has announced the launch of its first application for smartphones. That app is a timesheet to help employees independently track regular work hours, break time and any overtime hours for one or more employers. Individuals also can access a glossary, contact information and materials about wage laws through links to the Web pages of the DOL's Wage and Hour Division. According to the DOL’s news release, users will be able to add comments on any information related to their work hours; view a summary of work hours in a daily, weekly and monthly format; and email the summary of work hours and gross pay as an attachment. The app is free and currently is compatible with the iPhone and iPod Touch. The DOL has said that it will explore updates that could enable similar versions for other smartphone platforms (Android and BlackBerry), and other pay features currently not provided for, such as tips, commissions, and bonuses.

It remains to be seen how this information could be used during a Wage and Hour Division investigation when an employee claims that his or her employer has failed to maintain accurate employment records, although the DOL has said that the app information could be “invaluable” in such situations, which indicates that the app may be used as a tool in the government’s arsenal during such investigations. Secretary of Labor, Hilda Solis, states that she is “pleased that my department is able to leverage increasingly popular and available technology to ensure that workers receive the wages to which they are entitled. . . . .This app will help empower workers to understand and stand up for their rights when employers have denied their hard-earned pay." Both the app and a calendar can be downloaded from the Wage and Hour Division's site at http://www.dol.gov/whd.

According to Jay Glunt, a shareholder in Ogletree’s Pittsburgh office, “the DOL app raises two litigation issues: first, it becomes a potential source of discoverable ESI maintained by plaintiffs and, therefore, defense counsel should be asking plaintiffs about it; second, it would seem fair to expect employees making use of the DOL app to be equally diligent about utilizing their employer's time keeping protocols.” Glunt says that many wage/hour cases revolve around employees who unreasonably fail to make use of the employer's protocols. If an employee is using the DOL app to record hours because he or she feels inaccurately classified as exempt from overtime pay, that employee should be reporting that belief to a manager; and if classified as nonexempt, he or she should be making full use of the employer's timekeeping protocols, rather than ignoring the employer's process and relying instead on the DOL app.

The broad availability of this tool makes it critical that employers remain aware of the parameters of the FLSA, and assure that recordkeeping mechanisms are in place, says Al Robinson, former acting Administrator of the Wage and Hour Division of the DOL. In a typical wage and hour case, the number of hours worked by an employee is the primary issue. When an employee has been misclassified as exempt, employers who have not tracked the employees' time effectively cannot refute the claim made by that employee regarding how many hours actually have been worked. In addition, Robinson points out that the new app may have an adverse effect on the “de minimus standard,” which allows employers to exclude, from total hours worked, small increments of time that typically can’t be effectively tracked or recorded by the company’s time keeping methods. Employees now most certainly will be keeping track of those periods.