We previously reported on DOL's publication of a "Work Hours Calendar", a timesheet for employees to use to keep a private record of each workday’s arrival, start, stop, and departure times, along with other information.  In related comments, DOL told employees that "it is recommended that you keep your own records of all the hours you work and your pay."

In a news release this week, DOL cites that publication and goes a step further by announcing the launch of DOL's "first application for smartphones, a timesheet to help employees independently track the hours they work and determine the wages they are owed."  The free app is currently compatible with the iPhone and the iPod Touch.  DOL will explore making it available on other smartphone platforms.

Describing the new phone app, DOL's news release says:  "[U]sers conveniently can track regular work hours, break time and any overtime hours for one or more employers. This new technology is significant because, instead of relying on their employers' records, workers now can keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records."  (emphasis added).

According to reports, DOL has stated:  "The app also will enable users to add comments to the information; view a summary of their work hours in a daily, weekly, and monthly format; and e-mail the summary of work hours and gross pay as an attachment."  The "DOL-Timesheet" app allows employees to keep their own time records and e-mail themselves reports that they can print from their computer.  It also offers one-tap e-mail access to DOL and a link to regional DOL offices.

Once again, DOL is encouraging employees to keep what amounts to a separate set of books.  There is great potential here for needless mistakes or misunderstandings, or even for outright mischief on the part of some.  For example, most employees have no expertise in what is and is not FLSA worktime, and it is likely that "conventional wisdom" will lead many to record time in this app that does not count as compensable FLSA "hours worked".

As we noted in our previous post, employers are well-advised to be sure they can demonstrate that their records are the best accounts of all facts relevant to compliance with the FLSA and similar laws.  Among other things, employers should consider communicating explicitly to employees and managers the importance of accuracy in the employer's time records; requiring employees to report any hours-worked questions, discrepancies, or disagreements immediately; reviewing company time records on a regular basis for accuracy; correcting mistakes in the time records (with the employee's acknowledgement of the correction); and other measures designed to make the employer's records accurate and the most credible version that exists. 

Of course, employers must also educate themselves on what time must be counted as "hours worked"under the FLSA (including, but not limited to, compensable travel time) so that all such time is properly captured in the employer's records.

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Tucked away in a recent U.S. Labor Department e-newsletter was the announcement of a new "Work Hours Calendar."  It is a time-tracking document that the Wage and Hour Division urges workers to maintain separately from the employer's official records.  According to the newsletter:

[The] Work Hours Calendar in English and Spanish has been developed to help workers make sure they are properly paid at the end of the work week.  The calendar helps workers track their rate of pay, when they start and stop working, and arrival and departure times.  This information would prove invaluable during an investigation where an employer has failed to maintain accurate employment records.  Designed for use by those who are the most vulnerable workers in the country, the calendar includes easy-to-understand information about worker rights and how to file a wage violation complaint.  The calendar can be ordered by calling 1-866-4US-WAGE (866-487-9243).

[Emphasis added].

Regulations already require employers to keep accurate records of all hours worked by non-exempt employees.  Nevertheless, DOL's Calendar tells workers:

[I]t is recommended that you keep your own records of all the hours you work and of your pay.  It is recommended that you keep all your pay stubs, information your employer gives you or tells you about your pay rate, how many hours you worked, including overtime, and other information on your employer’s pay practices. This work hours calendar should help you keep as much information as possible.

[Emphasis added].

The Calendar not only contains spaces for each workday's "start" and "stop" times but also calls for recording the employee's "arrive" and "leave" times for the day.  We anticipate that this information might be used by DOL in an investigation to examine whether, for example, any compensable work was allegedly performed after the "arrival" time but before the "start" time, and whether the employer properly counted and compensated such time as hours worked, particularly when it comes to any overtime pay due for the workweek.

Despite its otherwise-detailed nature, the Calendar includes nothing calling for the employee to certify, attest, or so much as even acknowledge that the information written on it is accurate and correct.

The Calendar concludes by saying that workers have "the right to be paid fairly," and that "[i]t is a serious problem when workers in this country are not being paid every cent they earn."  As we have said in connection with DOL's We Can Help initiative, statements like this might well lead to employee dissatisfaction about things having nothing to do with any law DOL enforces.  There are of course other compelling reasons to pay employees "fairly" and to be sure they receive "every cent they earn", but federal wage-hour laws impose no such obligations.

Given today's supercharged wage-hour litigation environment, and in light of this not-so-subtle urging that employees create an alternate set of records, employers are well-advised to be sure they can demonstrate that their records are the best accounts of all facts relevant to compliance with the federal Fair Labor Standards Act and similar laws.