If your employer doesn’t have you clock in and you are not paid for all of the hours you work, the US Department of Labor hopes that its new Timesheet App will help you protect yourself against wage violations. Employers often pay their employees by their schedule or only pay a set number of hours for each workday, regardless of the actual number of hours worked. The federal law requires employers to keep track and maintain a record of the hours worked their employees. If employers do not accurately track the number of hours worked, employees may not be paid all money they are owed. While the DOL Timesheet App reminds employers to maintain accurate records and helps workers track their work hours, the application overlooks many workers in need of accurate time records.
The main limitation of the DOL Timesheet App is that it only works for employees who are paid an hourly rate. For those workers who are paid a salary, piece rate, commission, tips, or some other form of compensation instead of, or in addition to, an hourly rate, the app cannot compute the amount of overtime owed. As the amount of compensation earned by these workers is not driven by the number of hours worked, accurate time records are often not properly maintained. Employees often fail to see the importance of time records and assume that because their compensation is not determined by the number of hours worked, that such time records are unnecessary. This widely-held assumption is a result of the false belief that overtime should be paid at one and one-half times the hourly rate; this is simply not true because overtime is actually to be paid based on the “regular rate.” The “regular rate” is determined by dividing the total amount of compensation earned in a week by the total number of hours worked. As you can see for employees who are paid a piece rate or commission, their regular rate will fluctuate each week based upon the number of hours worked and therefore, keeping accurate time records is vital to ensuring the proper payment of overtime.
The other limitation of the DOL Timesheet App is that it does not help workers understand what time should be counted as work hours. The glossary in the Timesheet App says that your start time is the “time you started working,” but it does not explain exactly when work is started. The federal regulations provide that an employee starts work when they begin performing an activity that is integral and indispensable to an employee’s first “principal activity” and the employee ends work at the conclusion of the last activity that is integral and indispensable to their last “principal activity.” There has been significant litigation concerning what is a principal activity and what activities are integral and indispensable to an employee’s principal activities, so there is not an exact and easy way of determining whether or not an employee’s time should be counted as hours worked. A principal activity is a duty that the employee is employed to perform. For example, a waiter may be employed to serve food to a table of the restaurant’s guests and reviewing the reservations for the night, setting the table, stocking the restaurant and any preparation for the guests’ arrival may clearly be integral and indispensable to the principal activity of serving the food. In addition, the clean up and resetting of the table may also be integral and indispensable to that principal activity and therefore, in this example, the waiter should be paid from the moment he or she begins preparations for the guests arrival until after the waiter has performed all those activities required by the employer before the waiter is allowed to go home at the end of his or her shift. As you can see, it would be very difficult to provide a software such as the DOL’s Timesheet that could possibly solve this difficult problem of knowing what time should be included in the total number of hours worked, but until the app does better in this regard, the value of this tool will always be somewhat questionable.
Finally, a real concern that has been expressed by employers is that the DOL’s Timesheet may actually encourage unnecessary wage claims brought by employees. While there will undoubtedly be employees who seek to use this tool to take advantage of their employers, for every self-interested employee there are several employees who are currently not being properly paid by their employers and who are not informed as to their rights. Unpaid minimum wages and overtime violations occur every day and the DOL has made it a priority to inform workers of their rights to such payments. The employment lawyers at Osman & Smay LLP also believe that teaching workers about their rights is the best method of avoiding litigation and ensuring the fair payment of employees. It is our job to interview our clients so that we can intimately understand the details of their work conditions to fully explain their rights in a particular situation. We always provide free consultations so that people will take the opportunity to learn about their rights without financial risk and to make it as easy as possible for our clients to protect themselves against unfair payroll practices.
Call today to speak with one of our experienced wage and hour employment lawyers.