Social Media Employment Law

An Apple A Day Keeps A Lawsuit Away?

The workplace continues to get smarter and more versed on its rights.   The million dollar question is whether that leads to a greater number of lawsuits.   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 recent government initiatives) have also made it easier for employees to learn about and understand their rights in the workplace.

The next step in the evolution has arrived.    The United States Department of Labor (“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, though the DOL is expected to develop versions for other platforms soon.   (You can view the new app by going to the DOL’s website.)

The DOL touts the significance of this new technology, noting that employees can now keep their own records instead of having to rely on employer’s records.   I may be missing something, but when were employees forced to rely solely on an employer’s records?   When were employees prohibited from keeping track themselves – on the draconian writing tablets 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.   Yet, the new app will arguably lead to more wage and hour lawsuits by employees, and, in fact, this new wage and hour calculator has the potential (1) to only tell half the story, since the app does not appear to allow for the possibility of “calculating” whether one is properly classified as “exempt” from certain wage and hour obligations, and (2) to be relied upon too much, since an employee’s own calculations and assumptions may be wrong, or, for the most cynical, false.

Employer Take Away:   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 you to remember:   First, the mere fact that employees may be keeping track of their hours remotely 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.   Second, the law generally places the burden on employers to document and retain evidence showing the hours worked by their employees.   In light of that, it is critical that you develop policies and usable forms to keep track of employee working time.    Particularly now that your employees can do it so much easier themselves.

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