As the federal government wades deeper into the realm of mobile "apps" (among the most useful, of course, the Smithsonian Institution’s “MEanderthal” app, which enables users to morph personal photos into prehistoric images of themselves), various U.S. agencies are promoting new apps that allow the public to access official information from “the palm of [one’s] hand.”
Not to be left behind, the U.S. Department of Labor (DOL) recently rolled out a smartphone app to help employees independently track the hours they work. The “DOL-Timesheet,” as the app has been dubbed, is currently available in English and Spanish for use on the iPhone, iPod Touch, and iPad. The app is designed to assist employees in recording their hours worked and calculating the wages – including overtime – that they’re owed. (Overtime pay is computed at a rate of one and one-half times the employee’s regular rate for all hours worked each week in excess of 40 – though California also has a daily overtime requirement for hours worked in excess of eight.) Users are currently able to view and email summaries of their logged hours and gross pay, and additional features have been promised, including the ability to track tips, commissions, bonuses, deductions, holiday and weekend pay, shift differentials, and paid time off.
Although the tool has recently come under fire for apparently excluding certain breaks from the total of hours worked, allegedly shorting employees by as much as 65 hours per year, the DOL released the app with the anticipation that it would “prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.” While it remains to be seen whether the tool will produce reliable or credible data or whether it will lead to a further increase in the volume of wage-and-hour class action claims, employers should be wary of the impending use of such “iEvidence” in wage disputes. The DOL’s new app underscores the need for employers to consult with counsel to make sure they’re maintaining accurate and complete time records in accordance with all state and federal laws. In California, if the employer fails to keep accurate records, the employee’s testimony or other credible evidence concerning hours worked (now including, perhaps, "iEvidence") is sufficient to shift the burden of proof on a wage claim to the employer. See Hernandez v. Mendoza, 199 Cal. App. 3d 721, 726-27 (1988) (citing Anderson v. Mt. Clemens Pottery, 328 U.S. 680 (1946)).