Foley & Lardner Labor and Employment Law Weekly Update (Week of May 16, 2011)

Foley & Lardner Labor and Employment Law Weekly Update (Week of May 16, 2011)

Employees Tracking Their Own Wages? The DOL Has an App for That!
By David J.B. Froiland

Last week, the U.S. Department of Labor announced the launch of its first application for smartphones, an iPhone® timesheet to help employees independently track the hours they work and determine the wages they are owed. Available in English and Spanish, employees can conveniently track regular work hours, break time, and any overtime hours for one or more employers. Additionally, employees will be able to add comments on any information related to their work hours; view a summary of work hours in a daily, weekly, and monthly format; and email the summary of work hours and gross pay as an attachment.

This new technology is significant because, instead of relying on their employers' records, workers now can easily keep their own records. This information could prove invaluable during a Wage and Hour Division investigation - or worse, an FLSA litigation - if an employer has failed to maintain accurate timekeeping records.

Employers who keep inadequate records of employee hours worked obviously face substantial difficulties in any FLSA litigation. This is true even when the employees have no records of their own time worked. However, if employees are now able to come forward with high-tech timekeeping data of their own, employers with poor records could find themselves outgunned altogether.

Secretary of Labor Hilda L. Solis made the following statement about the app: "I am pleased that my department is able to leverage increasingly popular and available technology to ensure that workers receive the wages to which they are entitled ... This app will help empower workers to understand and stand up for their rights when employers have denied their hard-earned pay."

The free app is currently compatible with the iPhone and iPod Touch®. The DOL will explore updates that could enable similar versions for other smartphone platforms, such as Android® and BlackBerry®, and other pay features not currently provided for, such as tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials, and pay for regular days of rest.

For workers without a smartphone, the Wage and Hour Division has a printable work hours calendar in English and Spanish to track rate of pay, work start and stop times, and arrival and departure times. The calendar also includes easy-to-understand information about workers' rights and how to file a wage violation complaint.

The app and printable calendar can be downloaded from the Wage and Hour Division's home Web page.

HR professionals can be worth their weight in gold if they can identify areas where timekeeping can be improved. When an employer has good timekeeping records, the DOL's new app looks more like an interesting gizmo to show your kids, and less like a powerful legal weapon to show the jury.

Congress Again Discussing Whether Employers Should Be Required to Provide Sick Leave
By Leonard Feigel

Healthy Families Act legislation, which would require employers with 15 or more employees to provide workers with up to seven days of paid sick leave, was again introduced in the both the House and Senate on May 12, 2011 (H.R. 1876, S. 984). The House and Senate bills were identical and both were referred for committee review.

Proponents of the bills state that workers without paid sick leave report to work when ill (referred to as "presenteeism"), which generally results in the employees' symptoms lasting longer and, with contagious illnesses, the infection of co-workers. The proponents assert that presenteeism costs employers $160 billion in lost productivity.

The details for the bills include the following:

  • Workers would earn up to 56 hours (seven days) paid leave in a calendar year.
  • Workers could use the leave to recover from their own illnesses, to care for an ill family member, to obtain medical (preventive or diagnostic) treatment, or to seek care if they are the victims of domestic violence or sexual assault.
  • Employers with sick leave policies that meet the bills' standards would not be required to change their policies.
  • Employers would be permitted to require workers to provide documentation supporting any sick leave absences lasting longer than three consecutive days.

Since 2004, similar legislation has been introduced in Congress multiple times but never obtained sufficient support for passage, primarily because of the cost to employers. It is not clear that the present Healthy Families Act has the necessary support for passage. Foley will follow this legislation closely and provide updates in future editions of our Legal News: Employment Law Update.