An App-le A Day Keeps A Lawsuit Away?

What do you get when you cross the ease and informality of social media with a smarter workforce?

Sorry, but it is not a joke. The U.S. Department of Labor (DOL) has just made it a little easier for today's educated workforce to do their own recordkeeping; at the same time possibly increasing the number of wage and hour lawsuits that will be filed.

In 2011 we have an application (or, "app") for just about everything. Sports apps, weather apps, and apps to help you find other useful apps. Navigation apps to tell me where I am, and where is the nearest restaurant or gas station. And various tracking apps that allow you to track in real time such things as your airline flight or the bus you are waiting to catch.

Much ink has been spilled over the impact that social networking and other forms of social media have had on our lives, and that is particularly true in the area of employer-employee relations. Indeed, past editions of our "Observer" have reviewed the recent decisions and actions taken by all branches of government concerning employment-related decisions that are made based on employee use of social media.

It is also an indisputable truism that the workplace continues to get smarter and more versed on its rights. The World Wide Web allows employees to Google all kinds of legal inquiries, and various state and federal agencies have created websites that contain volumes of information about employee rights and obligations in and out of the workplace. It seems that employees have potential counsel everywhere these days - an attorney on every block and around the Thanksgiving table. Social media and the Internet generally (often through affirmative government initiatives) have also made it easier for employees to learn about and understand their rights in the workplace.

So it is not surprising that we now see the marriage of social media apps and workplace issues. The DOL has just made available a free app for smartphones that allows employees to record the hours they work for an employer, to calculate the amount of money they may be owed, and to even determine the amount of overtime pay to which they may be entitled. The free app is currently compatible only with the iPhone and iPod Touch, although the DOL is expected to develop versions for other platforms soon. (You can view the new app by going to the DOL's website at www.dol.gov/whd/.)

The DOL is touting the significance of this new technology, noting that employees can now keep their own records instead of having to rely on their employers' records. Which begs the question: When were employees forced to rely solely on an employer's records? In other words, when were employees prohibited from keeping track themselves - on that draconian writing tablet known as "paper" - of their own work hours?

Presumably, the DOL's new app will make it easier for the DOL to investigate wage and hour issues by allowing it to look at and rely on the information contained in the form that it has now created for employees to use Yet, the new app raises some concerns as well. One problem is that this new wage and hour calculator has the potential to only tell half the story, since it does not appear to allow for the possibility of "calculating" whether one is properly classified as "exempt" from certain wage and hour obligations. In other words, a greater number of lawsuits may be filed by employees who believe they are owed additional (or premium) compensation for certain hours worked, without knowing that they have been properly classified as exempt from receiving that compensation. In addition, there is a likelihood that these new lawsuits will spawn from an employee's own calculations and assumptions that are simply wrong, or perhaps more cynically, that are false in the first instance.

So what should you as an employer take away from this development? The latest example of technology infiltrating the workplace serves to highlight two important points for employers to remember. First, the mere fact that employees may be keeping track of their hours illustrates the difficulty that employers now have in controlling or keeping track of employee work time when the employees no longer work within the boundaries of a traditional work day or office space. Efforts should be made to conduct internal audits to make sure that employees are properly classified under applicable law. Second, the law continues to place the burden on employers to document and retain evidence showing the hours worked by their employees. In light of that, it is critical that employers develop policies and usable forms to keep track of employee working time. Particularly now that your employees can do it so much easier themselves.

www.cozen.com The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Mr Michael Schmidt

Cozen O'Connor

1900 Market Street

Philadelphia

PA 19103

UNITED STATES

Tel: 2156652000

Fax: 2156652013

E-mail: jdobrich@cozen.com

URL: www.cozen.com

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