Technology has transformed the way time is kept in the employment relationship.  Technological innovations impact both the concept of work time and the way in which time is recorded.

Both Wisconsin law and federal law require all employees to be paid for hours worked. Hours worked are compensable if an employee is “suffered or permitted” to work for the employer, whether or not required to do so. Current federal law states that insignificant or insubstantial periods of time worked by an employee beyond the scheduled working hours which cannot as a practical administrative matter be precisely recorded for payroll purposes may be disregarded.  However technology has now made it possible to record time in increments of seconds, and to track internet usage accurately.

Moreover, with the advent of personal digital assistants (PDAs), employees have the ability to work all hours of the day and night. If an employer permits its employees to send and respond to emails, or to make and receive phone calls after their work day ends, even if the time spent is minimal, that time can be recorded in minutes and seconds. Because of this new ability to more accurately record time, no amount of time will now be deemed “insignificant.”

The U.S. Department of Labor (DOL) recognizes the importance of unrecorded time. On May 9, 2011, the DOL announced the launch of a new application for Smart Phones. It is a time sheet that allows employees to track the hours they work and determine the wages they are owed. As part of its announcement of the availability of this free app, the DOL noted that “instead of relying on their employer’s records, workers can now keep their own records”. The DOL further opined that the information kept “could prove invaluable during a [wage and hour] investigation when an employer has failed to maintain accurate employment records.”

Both employees and employers should develop an understanding as to when compensable work is to be performed and how to appropriately account for
the time. For example, if employees are required to carry and use PDAs, a decision should be made whether the employee will be required to use them after hours. This decision may impact whether an employee is considered “on call” for purposes of compensation under the wage and hours law. In addition, appropriate policies should be in place that require employees to log actual time worked in responding to emails or attending a web conference, for example. If the employer does not wish an employee to do incidental work after hours, then that prohibition should be communicated to the employee and also enforced. Employers should remember that compensatory time must be paid to employees even if the work performed was not authorized, if the employer knows or should know it was being performed and the employer allows the practice to continue.

If you have any questions about your rights and/or obligations under Wisconsin and federal wage and hour laws, do not hesitate to contact us.

Roger Pettit