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August 1, 2011

In Kasten v. Saint-Gobain Performance Plastics Corp. (March 2011), the U.S. Supreme Court found that an employee’s oral complaint about time-keeping practices may constitute protected activity under the Fair Labor Standards Acts anti-retaliation provision, and that employee complaints need not be written to enjoy FLSA protection. Lesson learned: Before taking adverse action against an employee, check whether the employee has engaged in protected activity within the last twelve or so months. Employers should add to the checklist of protected conduct oral complaints about payroll practices.

On May 9, 2011, the U.S. Department of Labor launched its first application (app) for smartphones, described as a timesheet to help employees independently track the hours they work and determine the wages they are owed. Users can track regular work hours, break time, and any overtime hours they work for one or more employers, according to the DOL press release. The free app is compatible with iPhone and iPod Touch and is available in English and Spanish.

The app highlights an employer’s need to maintain accurate time records for its non-exempt employees. Courts in wage and hour litigation have given significant weight to employer time systems which reasonably track employee hours worked. If the employee uses the DOL app, the employee theoretically has a reliable record which challenges the employer’s records. Employers may want to create a workplace policy requiring employees to immediately report any disparity between their time records and their pay stubs and to provide the app records to the employer in order to ensure accurate straight time and overtime payments.