The Wage and Hour Division of the U.S. Department of Labor (DOL) has made several changes worth noting in the past 18 months that have the potential to impact employers. The Obama Administration has made more monetary resources available to the Wage and Hour Division to enforce the provisions of the Fair Labor Standards Act (FLSA). The Wage and Hour Division has made investigating off-the-clock work claims a high priority including actively putting financial resources in place to increase its ability to investigate off-the-clock work claims.

Moreover, in an effort to stay relevant in the 21st Century, the DOL issued a time recording application (app) available for use on smart phones so that time worked may be tracked by American workers. Although we do not believe that the DOL’s free app has had a significant impact on employers, it has certainly been a creative way for the DOL to stay in front of the American employee on the technology front.

The app is an interactive timesheet that allows employees to track their hours by clocking in and clocking out for work, as well as clocking in and out for meal breaks. When the app was first introduced, some employers saw this as a radical change to their record-keeping requirements. The reality is, however, that this app should have little impact on most employers’ day-to-day operations and recording of time worked. First, the app allows employees to track their hours worked, which is really nothing new. Employees have been able to track their hours worked all along. They just haven’t been able to do it on a mobile device.

Employees have always been able to track their time on a scratch piece of paper, on a computer, and on other similar platforms. Second, the app can be manipulated easily and modified to the point that most employers should be able to challenge the legitimacy and accuracy of the time recorded. For example, if an employee forgets to clock out or makes an error, the app allows a manual override and a manual change to the employee’s clock-in or clock-out time. The app does not appear to track these modifications or changes. Third, contrary to some people’s initial concerns, the DOL cannot track an employee’s use of the app for enforcement purposes.

Employers should not overreact if they find out that an employee is using the timekeeping app. Unless the employee is violating a company policy by using the app (for example, by having a mobile device in an unauthorized work area), we recommend that employers not draw attention to use of the app, and certainly do not take any disciplinary actions against an employee for using the app. Any adverse action taken against an employee for using the wage and hour app could result in a claim of retaliation.

Next time we will discuss the importance of providing non-exempt employees an uninterrupted 30-minute meal break if employers want to treat the meal break as unpaid. With today’s technological advances, including cell phones, smartphones, security access card swipes, and other time recording devices, a record may now exist of non-exempt employees’ meal break interruptions.


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Wage and Hour

Ogletree Deakins’ Wage and Hour Practice Group features attorneys who are experienced in advising and representing employers in a wide range of wage and hour issues, and who are located in Ogletree Deakins’ offices across the country.

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