Under the Fair Labor Standards Act employers are clearly required to track and record their employees’ hours worked. On May 9, 2011, the United States Department of Labor introduced a new smartphone timesheet application that provides individual employees the ability to track their hours worked and calculate their respective compensation for those hours. Might this new smartphone application, however, create new litigation challenges for employers - such as allowing employee/plaintiffs to create fact issues to avoid summary judgment?

The DOL’s timesheet application allows employees to enter their regular rate of pay, record each day’s arrival and departure, work start and stop, and meal and break times. After this information is input into the application, an employee can calculate wages owed including overtime pay at a rate of one and one-half times the employee’s regular rate for all hours worked over forty in a workweek.

Users can add comments to their entries; view hours worked and wages owed in a daily, weekly, or monthly format; and e-mail the data as an attachment. The application does not currently allow an employee to record certain pay features such as tips, commissions, bonuses, deductions, holiday pay, weekend pay, shift differential pay, or pay for regular days of rest. The DOL has indicated however that it intends to explore updates that would allow employees to account for these items.

This initiative is one more example of why employers should ensure their recordkeeping practices and pay policies comply with federal and state wage and hour laws, and be prepared to defend the accuracy of their own records in the event of a dispute with an employee who uses the DOL timesheet application to independently track hours worked.  Employers should also be aware of potential e-discovery issues that could arise from employee use of this application.  One can imagine that employers could in fact be obligated to take steps to preserve any data entered on company-issued smartphones, downloaded on work computers, or emailed to and from work email addresses, in addition to any data presented by employees in the course of a dispute over hours worked.