Employee Discussions of new DOL Phone App

On May 19, 2011, the U.S. Department of Labor launched its first application for smartphones. Available in English and Spanish, the application helps employees conveniently track regular work hours, break time and any overtime hours for one or more employers. It also provides a calculation of gross pay and overtime pay. DOL promises updated versions that will allow tracking of tip income, bonuses, deductions from pay, holiday pay, shift differentials, and paid time off. New versions will work not only on iPhone and iPod Touch, but also Blackberry and Android-based smartphones.

According to the DOL, “This new technology is significant because, instead of relying on their employers’ records, workers now can keep their own records.”

This is important in two respects: First, the FLSA requires employers to maintain accurate records of hours worked by nonexempt employees, and failure to maintain records is a violation of the FLSA in itself, even if the employer complies with its minimum wage and overtime obligations.  Second, should an employer fail to maintain adequate records, DOL believes that Courts can use the new app records in determining that the employee has satisfied his/her initial burden of proof to establish that they performed work for which they were not properly compensated. With the shifting burden of proof applied in ‘no records” cases, all the employee has to do is produce “sufficient evidence” to show the amount and extent of that uncompensated work as a mater of “just and reasonable inference.” Employers often are faced with “failure to maintain adequate record” disputes where the employer does not keep any time records for employees that it considered exempt; or where the employer failed to keep adequate time records about waiting time, working off the clock, or break times for hourly employees.

Where employees are over-heard discussing the new DOL smartphone app in the workplace, employers need to proactively:

·        Train supervisors how to respond to employee comments to build the defense that our Company complies with the FLSA;

·        Educate employees about how to internally report any suspected FLSA violations so that the accusations can be investigated and corrected; or  unsupported concerns can be diffused;

·        Train supervisors to beware of the pitfalls of retaliation claims brought by employees who raise violation suspicions under the FLSA;

Train supervisors that discouraging all discussion of pay or overtime can in certain situations violate the National Labor Relations Act.