Cell Phone Time Keeping Application
Steven Cesare, Ph.D.
A landscaper from New Jersey contacted me the other day to talk about tracking non-exempt employees’ work time. Given the increased frequency and cost of wage and hour lawsuits due to inaccurate employee time tracking (e.g., start of work shift, end of work shift, start of meal period, end of meal period, unpaid overtime), this issue is of paramount importance to all detail-oriented business owners.
Like many small businesses, this Company has considered paper time sheets, time clocks, and various GPS products to address this complex and imperfect issue. At the time of our conversation, the Company had decided to track non-exempt employee work time by requiring all non-exempt field employees to install a time keeping application on various electronic devices including Company-issued cell phones and tablets, as well as on employees’ personal cell phones. With the application in place, affected employees would simply have to activate the application at appropriate times (e.g., start/end of work shift, start/end of meal period), to document all work time that would be forwarded easily to the payroll system, thereby ensuring accuracy, expediency, and compliance.
Well, maybe two out of three…
Upon hearing the facts of this process, I offered the following points of caution, review, and counsel to the landscaper.
- Verify that tracking employees’ work time using this type of technology is legally compliant with existing state law. While intuitively, we think we know the answer, it is always best to be more safe than sorry, when dealing with wage and hour issues.
- Ensure the Company Employee Handbook contains a policy of GPS tracking, employee surveillance, and electronic time keeping to remain transparent to the workforce.
- Since the application was required to be installed on employees’ personal cell phones, several nuanced issues become immediately noteworthy.
- Did the employees sign a formal, written consent form or waiver statement allowing this application to be installed on their personal cell phones?
- Were the employees informed that the application would also track their time and whereabouts on non-work time?
- Could the application be deactivated at the end of the work day on each employee’s personal cell phone to prevent surveillance of them on personal time?
- Which Company managers would have direct access to the employees’ GPS time keeping (e.g., location, time, duration) reports, which may also include information about their locations during personal time (e.g., home, night club, friend’s residence).
- Much like an employee using a personal vehicle for Company-related business, the use of an employee’s personal cell phone for Company-related business must be quantified financially and reimbursed to the employee as non-taxable income on all relevant pay checks. This reimbursement could be done singularly, or as part of a larger BYOD (Bring Your Own Device) Policy contained within the Employee Handbook.
- What was the anticipated course of action if a non-exempt employee actually refused to have the time keeping application become resident on his/her personal cell phone, or if the employee did not possess a personal cell phone?
We all agree that tracking employee work time is problematic, yet vital to organizational success. While technology often times represents a seemingly pragmatic solution, always consider the marginal legal risks that may initially appear to be trivial, while in fact they can quickly become financially serious.
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