Any employer who has defended a wage and hour claim knows that in the absence of verifiable time records, such as time clocks, it is difficult to rebut the hours an employee claims they worked. Exorbitant legal fees are incurred attempting to recreate workdays, and cases are lost because employers failed to keep accurate time records. In order to establish a claim for unpaid overtime, an employee need only show that it is more likely than not that he or she actually worked overtime hours for which compensation was not paid. Some federal courts require employers to prove an employee did not work overtime in the absence of accurate time records.
The ability of employees to keep track of the hours they work just became easier. On May 10, 2011, the Department of Labor (DOL) announced the launch of its first application for smartphones. The application is a timesheet to assist employees to independently track the hours they work and determine the wages they are owed. The application is available in both English and Spanish, and allows employees to track regular hours worked, break time and any overtime hours. The admissibility of such records in litigation is an issue to be determined by courts, but, according to the DOL, “This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.” Obviously, the DOL plans on giving credence to the records an employee keeps. In the absence of accurate time records, courts generally permit an employee to testify regarding the employee’s recollection of hours worked, which means records kept in accordance with the DOL application will likely be admissible in a court of law.
The DOL application is free and currently compatible with the iPhone and iPod Touch. The DOL plans to update the application and make it compatible with other smartphones, such as the Android and Blackberry. Additionally, the DOL plans to expand the features of the application to keep track of tips, commissions, bonuses, deductions, holiday pay, pay for weekends and shift differentials. Even for workers without smartphones, the DOL provides a printable work hours calendar in English and Spanish to track rate of pay, work start and stop times and arrival and departure times. Conveniently, the calendar includes information on how to file a wage violation complaint.
Private wage and hour lawsuits and DOL enforcement actions are increasing. It is imperative that employers keep accurate time records, especially now that employees have the tools to keep records for themselves.
Contact: Jon Secrest