July 2012

By: Walter J. Liszka, Esq.

As technology improves and more of the workforce becomes conversant with Smart Phones, iPhones, and Touch Pads, the chance of the ever-expanding litigation dealing with Wage and Hour claims becomes greater. In an article that appeared in our June 2011 entitled “A Bridge to Justice – A Bridge Too Far?” the author discussed the unprecedented collaboration between a Federal Government Agency [Department of Labor (DOL) – Wage and Hour Division] and the American Bar Association (ABA) Standing Committee on Lawyer Referrals and Information Systems. That article detailed the fact that the DOL and the ABA had entered into an approved attorney referral system that would allow the DOL to refer cases that they could not handle to “qualified counsel.” It is now becoming quite clear that the DOL – Wage and Hour Division is expanding its ability to interface with both employees and the consuming public.

The DOL recently created a Smart Phone app “Eat, Shop and Sleep” which allegedly allows users to search for places to eat, shop, and sleep, and also to review customer reviews of the entities providing those services. However, this Smart Phone app goes a little bit further in that it provides to its users (consumers) information with regard to DOL enforcement issues (i.e. health issues, safety issues, and labor law violations). It permits the user to report a company name, any health or labor law violations, and furthermore, permits the user to find out if a “company name” indicates previous Fair Labor Standards Act (FLSA) violations.

By hitting the “take action” button that permits a user to report violations to the DOL, the user is also directed to DOL contact information such as the phone numbers and office locations; a link to an online complaint form; a link to online workers’ rights; and the Occupational Safety and Health Administration (OSHA) data. Obviously, the DOL thinks its Smart Phone app of “Eat, Shop and Sleep” can lead to the discovery of Wage and Hour issues.

As well, the DOL has also developed a free time sheet app that allows employees a simple way to track their hours worked and wages owed. According to DOL Secretary Hilda Solis, this application will not only “empower workers” to protect their interests but also will be “an invaluable source of information that the Wage and Hour Division can use in investigating employers who have failed to maintain accurate records.” This app is compatible with iPhone, iPad, iPod Touch, and is available as a free download at the DOL site. As any employer who has become embroiled in an FLSA litigation matter clearly knows, it is the responsibility of the employer to maintain, keep, track, and provide accurate and complete information with regard to an employee’s hours of work and compensation. A failure to keep and provide this type of information is, in and of itself, a violation of the FLSA.

In any FLSA litigation, it is the employee’s initial burden to prove that the employer had committed a violation. An employee may satisfy this burden by proving that he/she has performed work for which he/she was not compensated by producing sufficient evidence to show the amount and extent of that work as a matter of reasonable inference. Once the employee has established their initial burden, which, based on case review, is not very difficult, the burden of persuasion shifts to the employer to dispel or disprove the employee’s position. Assuming, solely for purposes of discussion, that the employer’s records are inaccurate or inadequate, the reasonable inferences of the employee will be accepted. One must wonder if this new DOL time sheet app may bolster an FLSA claim by an employee for a wage claim. Will a court find this type of evidence “more compelling” than records kept in a notebook? As Director Solis stated at the American Society of Safety Engineers Conference in 2009, “make no mistake, the DOL is back in the enforcement business.” Certainly, the enhanced use of technology by the DOL is proof of that fact.

Obviously, the technological age provides great advances for dissemination of business information. As suggested in this article, it may also provide the DOL with a chance to further intensify their “enforcement” for FLSA violations.