In March 2011, the U.S. Department of Labor (“DOL”) requested a $13.3 million increase in its budget, the bulk of which is slated towards increased enforcement and regulation of wage and hour laws (namely FLSA). The DOL has sought 107 additional full-time personnel to advance its crusade against wage and hour violations and, according to the DOL, is planning to conduct an additional 3,250 investigations in 2012.
As part of its increased enforcement plan, the DOL recently launched a timesheet application for smartphones to empower employees to independently track the hours they work and determine the wages they are owed. Via the application, employees can track regular work hours, break time and any overtime hours for one or more employers. It also permits users to add comments 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. According to the DOL, “[t]his information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.”
Naturally, the DOL’s application is “employee vs. employer” friendly, in that it fails to permit the tracking of holiday, rest and weekend pay, and compensation such as tips, commissions and bonuses. The application also fails to account for permitted and customary employer rounding practices and agreements concerning overtime. The end result being that the information tracked by an employee may inaccurately report wage and hour information, and indicate non-compliance in instances where the employer is in full compliance with wage and hour laws. So, when the DOL gets the application information from an employee, it may be starting its investigation based on incorrect information, making and truly compliant employer appear to be in violation of the wage and hour laws.
What is the employer to do? Simple, keep better records and track time in a manner that is superior to that of your employees. Employers should also ensure that all employees are properly classified and paid as required by law. Employers should not prohibit their employees from utilizing the new application – such an act could be deemed to be an unlawful retaliation.
The bottom line is that the DOL is on the warpath to enforce wage and hour laws and will utilize all means, inclusive of arising technology, to achieve its goals. All employers must continue to be vigilant in assuring wage and hour compliance, and do so in a manner that can be presented to the DOL if and when an investigation occurs.
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