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|Friday, May 13, 2011|
By Tamsen Leachman
Creating evidence to bolster a wage and hour lawsuit has never been easier. Last week, the U.S. Department of Labor launched its free iPhone and iPad app designed to help employees who want to keep their own time records — just in case.
According to the DOL, the app will allow employees to easily track the time they work, whether they take breaks and how much overtime is worked. Although a company’s time records are the official record, an unofficial record, like the one created by this app, can be considered in court if there is disagreement about the accuracy of a company’s records.
Employees using the app may not be simply keeping a separate timesheet. The app also allows employees to create reports and summaries, add comments to the entries and email the data. The DOL has thought of everything, it seems. It even added easy, one-tap email access to the DOL and links to regional offices. With the DOL at employees’ fingertips, some experts are concerned the number of potentially costly wage and hour claims will quickly increase.
Oregon employers have seen a spike in the number and the size of wage and hour claims in recent years. These claims are particularly expensive because they not only seek unpaid wages, but also allege heavy penalty amounts. Oregon has several penalty provisions that, when triggered by a failure to pay all wages owed, can easily double, triple or even quadruple the wages in dispute. When attorney fees to defend the case and for a winning plaintiff are added, the cost of these claims quickly skyrockets.
The ultimate impact the DOL’s app is unclear. We do know that this app will appeal to certain segments of the workforce – younger and more tech-savvy workers, for example – and anyone who suspects they are not being paid correctly or fairly. This should be a wake-up call to businesses. Keeping sound time records, having employees review and confirm the accuracy of time entries, paying employees correctly and creating open channels of communication for questions about pay issues has never been more important.
While there is no guaranteed fix to pay disputes, businesses that include their employees in creating and confirming the time records, generally achieve better results. On the other hand, businesses that encourage employees to record time that is not a real reflection of reality quickly find themselves in trouble. Juries know that no one works precisely from 8:00 a.m. to 5:00 p.m., with lunch from noon to 1:00 p.m., day in and day out. However, they also tend to believe employees who claim they were told to clock out for lunch even though they worked at their desk during lunch, especially if there are witnesses to back up the employees or where several employees tell the same story.
Businesses that find and correct pay mistakes by listening to employees who find them, or through their own internal audits or review, typically avoid big problems by catching and fixing the small ones. If it has been a while since you looked at your pay practices and time records, the DOL app may be just the motivator to move this task to the top of your to-do list.
Tamsen Leachman is a partner at the Portland office of Fisher & Phillips LLP.
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