Are Coders Exempt From California's Overtime Laws? 693
Gizmo Kid asks: "How many of you Californian, full-time, software programmers are getting paid overtime? From what I understand, a law in California, passed within the last two years, says that software engineers who make less than $41/hour [PDF version] are required to be paid for overtime? Are your employers following the rules? I'm not sure mine is?"
Mandatory overtime payment (Score:4, Informative)
Salaried workers (Score:2, Informative)
overtime? hahaha (Score:4, Informative)
Re:Mandatory overtime payment (Score:5, Informative)
you get TOIL instead
TOIL for everyone! Woohoo!
Oh, wait...
Yes, it means Time-Off-In-Lieu [of $$$]. (At least I think it does.)
Looks like (Score:5, Informative)
It's been a LONG time since I've been an hourly employee.
Re:Salaried workers (Score:3, Informative)
Most companies on my resume just gave you the time off without penalty. I worked for a mill that gave you 10 paid days which everyone used in January and then they came in sick for the rest of the year. They couldn't risk getting to the end of the year with free days left.
Overtime? In the South? Yeah, right.
Re:What are you going to do though. (Score:3, Informative)
Grudgingly, but they pay it... (Score:5, Informative)
But yes, as long as we're here sitting at our desks, typing away like good little code monkeys, we do get paid overtime. For now.
Labor laws are different state to state (Score:5, Informative)
Here in NYS, last time I looked ( which I admit was a couple of decades ago) one could be legally made salaried management for only $251.25/wk, and once you are salaried the only work time restriction your employers face is the requirement that you make at least minimum wage if your time were tracked on an hourly basis and that you have at least one day every fortnight off.
So, as always, check your *local* labor laws and consult a *local* lawyer with a specialty in labor contracts.
Oh, yeah. Do it *before* you sign anything.
KFG
Re:Contract? (Score:2, Informative)
Or you could, you know, ask people who know (Score:5, Informative)
here's part of the California Dept of Labor FAQ [ca.gov] about Overtime
Here's what I would do if I were you:
1. Call the California Dept of Labor and ask them.
2. With your newfound information, talk to your boss
3. If circumstances warrant, file a wage claim.
Just because the economy is bad does not mean that you lose all of your rights.
You may be due for backpay and then some (Score:5, Informative)
by - Carl Khalil, Esq.
June 05, 2002
If you are like most people, you have been led to believe that if you are an executive, professional or administrative employee, you are doomed to work 60 hours per week and receive no overtime pay for your efforts, just a set salary. However, it's time to think again.
One study has estimated that 39 billion of overtime pay is owed to "salaried" employees in the United States who should actually be paid overtime at time and a half when they work over 40 hours in a week. If you are one of these salaried executives, professionals or administrators, often called white collar employees, you might be interested in knowing how likely it is that you may be entitled to a share of this money.
The Title Game. First, there is the title game. You have a big fancy executive or professional sounding title so your employer does not pay you overtime. Unfortunately for employers, federal overtime laws say that the job title is irrelevant; it is the actual work duties that control. For example, several current and former Waffle House Managers who regularly worked 80-100 hours per week were not paid overtime because they were called "Managers," which is typically an executive position and therefore exempt from overtime pay. However, in reality, the Managers spent most of their time waiting tables, cooking and washing dishes. Hence, they recently won an award of $2.86 million for unpaid overtime when a Tennessee court held they had been misclassified as executives.
The Salary or Fee Basis Rule. Second, even if you truly are a white collar employee under the overtime laws, you must be paid on a salary basis (often called the no docking rule) or the employer loses the exemption from owing overtime pay. For professionals and administrators, employers may also pay you on a fee basis. If you are not paid according to the strict salary or fee basis rules, the employer must pay you for your overtime even if you truly are a white collar employee. These rules are frequently violated leading to enormous potential overtime exposure.
To be on a salary basis means that an employee is paid a set amount each week regardless of the hours they work, with some narrow exceptions. In one recent case, Pharmacists at Wal-Mart, who would normally not receive overtime pay as professionals, were sometimes told to go home early when work was slack, and had their pay reduced as a result. A Colorado court held that the salary basis rule was violated and the Pharmacists were owed overtime. In another case, former Managers at an auto parts store had their pay subject to deductions for cash shortages. Once again, an Ohio court held that the salary basis rule was violated and awarded unpaid overtime to the Managers.
The fee basis rule is rather simple. It means you are paid a flat fee to do a task regardless of how long the task takes. In a recent case, a professional home care nurse, Wendy Elwell, who regularly worked 60 hours per week, won over $50,000 plus her attorney's fees when the court held that her compensation arrangement did not qualify for the fee basis rule because she was paid not only a set fee for home health care visits, but also additional compensation for lengthy visits.
Independent Contractors. Another area where misclassification commonly occurs is with independent contractors. If someone is under the control of the employer and not functioning as a true free lancer in business for herself, it is likely that she is really an employee, not an independent contractor. While contractors are not covered by overtime laws, employees sure are. In one recent case, a chauffeur at Bell Atlantic won an overtime award when the court ruled him to be an employee even though Bell Atlantic treated him like an independent contractor.
Overtime Remedies. Under federal law, an employee or ex-employee has two years to bring an overtime claim, three years for willful violations. Some states extend these times under their own overtime laws, and indeed grant broader overtime rights to employees than under federal law. Moreover, a successful employee will normally receive an award of DOUBLE their unpaid overtime, plus their attorney's fees in pursuing the claim.
In sum, just because you are white collar and paid on a salary does NOT mean that you should not receive overtime pay. Because sometimes you most certainly should.
Carl Khalil is a Virginia Beach, Virginia attorney and the founder of the website www.PayMyOvertime.com, which is devoted to helping employers and employees learn about their overtime rights and duties. Mr. Khalil is also the founder of www.BreakYourNonCompete.com, which has been featured on the NBC Today and in nationally syndicated career columns.
Re:Contract? (Score:4, Informative)
Re:Mandatory overtime payment (Score:5, Informative)
Re:Contract? (Score:3, Informative)
If you realize that it's gonna take a lot more than you estimated you have two options, one talk to the person whom you've made a contract and see if it can be extended etc. Or two suck it up and do the work.
Funny thing is if they say no to the extention / re-negotiation then you're screwed and you still have to produce the work. I've been working on helping to develop contracts and I work with the president of my company and I'm there for the staff meetings where project status is discussed and any problems that might come up needs to be addressed asap b/c they will affect deliverables.
Re:Go on strike! (Score:2, Informative)
That's not what Unions are for. Unions are for the workers not being bullied by management.
As long as coders are being forced to work unpaid overtime, having technical requirements set by inept managers, and being forced to compete with exported jobs, a union makes sense.
Unfortunately, the myopic view of most programmers means that a union has about as much a chance of working as a "Geek PAC."
Re:Move to Europe ! (Score:3, Informative)
Re:Mandatory overtime payment (Score:2, Informative)
Re:Public Companies part of the problem? (Score:2, Informative)
Imagine a small mom & pop hardware store. Each year it makes enough money to keep up repairs, pay all employees, send the owners' children through college, and provide a nice nest egg for the owner's retirement.
If this hardware store were publicly traded, it would lose big time because it's not GROWING and has no POTENTIAL for growth.
That's what the stock market is completely and utterly about. Not about sound and financially stable corporations. It's about corporations who constantly have to find new angles to increase their market share to keep their stock rising. Merely being profitable is NOT enough.
This also forces corporations which have reached their maximum market share to enter unprofitable markets. It doesn't matter if they are unprofitable and that workers will be laid off in droves, it only matters that the corporation is attempting to expand and cut costs in the eyes of the stock holders. That's always the bottom line: Will the stock market like it.
In our mom & pop example, if they suddenly laid off half their staff no one would ever consider it a success. Only in the world of the stock market could it be viewed that way.
But, don't expect anything to be done about it. The US economy is way to intertwined with the stock market for it to ever be eliminated.
Re:Public Companies part of the problem? (Score:2, Informative)
Its far from being glamorous, but I get paid a competitive amount and have mostly very reasonable managers. The company has a sound business model that has developed because we don't have shareholders that only care about a rapidly increasing stock price. The President of the company has to make sure that there is real and honest business going on because if he doesn't, he doesn't get paid either.
-Shadow
Re:Mandatory overtime payment (Score:4, Informative)
This is false and a common misconception. A salaried employee (who is required overtime pay) receives 1.5x his/her equivilent hourly wage. Being salaried does not expempt a person from OT, the position/job duties do.
From my understanding management is OT exempt. (there are more exemptions but IIRC don't apply in this situation.) Your state may vary.
Re:What are you going to do though. (Score:1, Informative)
Re:Mandatory overtime payment (Score:3, Informative)
Re:Mandatory overtime payment (Score:2, Informative)
Salaried/Exempt (Officers & management) do not get paid an hourly wage, and are not required to be paid overtime.
Hourly/Non-Exempt (Workers) are required to be paid overtime for extra hours worked.
Salaried/Non-Exempt (This is usually a manager/foreman who has to cover shifts, or supervises workers) You get a salary, and are usually expected to put in whatever time it takes to do a days work. However, when you have to work a lot of extra hours, to cover extra work or an open position (vacation, illness), you have an overtime rate that you get paid. I've had jobs like this, and it's nice when they make you come in and work weekends.
Good work if you can get it, hard to find in the IT field (Which I'm not in.)
Re:overtime issues (Score:4, Informative)
I suggested in that case they should have built it last year and they said "uh-huh"!
Bank of America class action suit (Score:2, Informative)
BofA is now paying all programmers & System Administrators in California overtime. This is in accordance to a class action law suit brought against the company by past/present employees. BofA actually had to pay back-pay plus a penalty. This includes compensation for "On Call" time when admins have to carry a pager, or are called in on an emergency.
California's law is kinda screwy also, since overtime is defined as any hours > 8 in a day. So BofA had to cancel all flex time (work 10 hours M-Th, get half day Friday) and has implimented time logging for all of us. Not quite punch cards, but quite possibly soon.
In Chicago, we've been told to not work *any* overtime until we are informed as to our new status. It's looking like Managers will not be getting OT, but everyone else will.
Our biggest concern is what effect this is going to have on our employment situation. BofA is actively using off-shore programing sources, and this is just another reason for the executives to justify sending all the programming work to India.
<Rant On>
This is just another nail in the coffin. Stupid-assed labor laws like this are really going to kill this country.
</Rant On>
IANAL: Federal Fair Labor Standards Act of 1938 (Score:3, Informative)
The Fair Labor Standards Act [dol.gov], Sec. 13(a)(17), added by the Small Business Job Protection Act of 1996, specifically exempts certain computer industry professionsals from overtime requirements. The text of this section is as follows:
We recently went through the painful process of re-assigning exemption status at the company for which I work. It was discovered that, though there might be cachet with a salary, an hourly wage can be very lucrative. (I'm salaried; no overtime for me.)
Re:Well, Feds are going to change that anyway (Score:4, Informative)
Actually that is not true. The Fair Labor Standards act has a specific provision that places entry level computer programmers in the non-exempt category:
"Computer professional employees must meet certain standards to be considered exempt from the overtime provisions of the FLSA. A computer professional is defined as "any employee who is a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker, whose primary duty is the application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications; and/or the design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications; and/or the design, documentation, testing, creation, or modification of computer programs related to machine operating systems," or a combination of these duties.
Employees performing these duties remain eligible for exemption from the overtime provisions as professionals under section 13(a)(1) of the Act. The jobs defined as computer professionals do not change with the 1996 amendment. Computer professional positions continue to be those meeting the duties test described in 29 CFR 541.303 (a)(1) above.
The exemption does not include trainees, employees in entry level positions learning to become proficient in such areas, or employees in these computer-related occupations who have not attained the level of skill and expertise which allows them to work independently and generally without supervision. Likewise, employees engaged in the operation, manufacture, repair, or maintenance of computer hardware or related equipment are not eligible for the exemption."
Re:What are you going to do though. (Score:2, Informative)
Texas Workforce Commission, Employee Rights and Laws [state.tx.us]
Re:Mandatory overtime payment (Score:4, Informative)
Re:Mandatory overtime payment (Score:3, Informative)
Yes. Sometimes less.
If they were bright enough to get those degrees, they're smart enough to figure out what a rotten deal they're getting.
Passion for what you do also has something to do with it. In my case, I would like to believe I am doing something that is making a difference and when it is my time to die, I would like to have left the world a little better off.
It's possible you rely too heavily on anecdotal evidence and that 100 hrs/week may be a peak week, but is not typical of all 52 weeks in the year and that $30K is not the average lifetime salary for those types of people, but perhaps a starting salary.
Anecdotal? Hardly. I and thousands of others are living proof. I routinely put in 100hrs/week most likely 40 out of 52 weeks a year and as a Ph.D. candidate, while I make considerably more than your typical candidate, it is still short of what one would expect someone with an earned doctorate to be making. Time spent in medical school and afterwards is even a more imposing proposition from a time perspective (but easier than the Ph.D. in some other respects). I never did a medical residency, but my neighbor is an orthpedic surgery resident and she puts in about the same time as I do (sometimes more during weeks with bad trauma cases).
As for starting salaries versus lifetime salaries, lets see. The typical postdoc gets approximately $28k to start, progresses to around $30k the next year and so on until the end of the post-doc. At that point folks can make more, but not much more for a while. Most medical residents salaries are not much different from this schedule either.
Re:Time to unionize. (Score:3, Informative)
One problem is that the Unions in many places make it hard to fire anyone. While many people do lose their jobs for unfair reasons, there are also many people who do not perform well in their job, and should be let go. From my understanding, it is actually quite difficult to fire a teacher if they've been in their positions for a few years, because the Union will "protect" them.
Another problem: Many Unions have bargained for structured pay raises and promotions based on seniority alone. This is especially the case in school districts. The result is that we see many district workers being lazy or only mainaining the status quo... because the Union makes it difficult to fire them, and they will get a raise after they have worked so many years, and only after they have worked so many years. There is no motivation to do better, because there are no pay raises due to merit.
Third problem is that the Union often will forcibly collect funds from all employees (funds are automatically taken out of pay), even if the employees do NOT want to be part of the Union. There was actually a complaint about this from several teachers in our local school district who believed that the Union was corrupt, and did not wish to support it. I'm not sure what the end result was, but it was a rather vocal complaint.
Plus we all know about the various forms of Union corruption out there, many involving organized crime, etc.
California Overtime Laws (Score:2, Informative)
The old company that I worked for required us to work 80 hrs/wk, 7 days/wk for 6 month. I (and most of my co-workers) got pretty fed up with this, so we started looking into California State law.
The law [ca.gov] that is being referred to does seem to indicate that MOST IT proffessionals should get paid overtime.
In English, the law says that if you are paid less than 41 dollars per hour, (that is, your weekly salary divided by 40 is less than 41 dollars), than you should be paid overtime (515). However, you are exempt as a computer programmer if you are a senior level engineer. (515.5)
As I and my coworkers were all qualified as junior -mid level programmers, we went and saw a labor attorney. He told us that we had a very strong case, and that we would almost certainly win a dispute against the company. He said that there has been very little case law testing this new statute, and we would be breaking new ground. We're still deciding whether to continue with the case or not. So far, I personally have been duped out of about 25K in overtime.
Hope this clears it up for people.
Re:overtime issues (Score:2, Informative)
Re:Mandatory overtime payment (Score:3, Informative)
Too Bad This Is Unenforceable. (Score:2, Informative)
Their response? They flatly denied we were owed it. And since they have way more lawyers (and money) than we do, we basically have to take it, or walk. (The guy in question left, rather than continue to put up with it. I'm still here, but bitter as hell.)
I'm told that a class-action lawsuit could be a possibility, but only if we can get enough people together to form the minimum "class size", and that seems unlikely to happen, since everyone is fearful of losing their jobs (laws forbidding retribution notwithstanding). If anyone knows of a way to gather Screwed Game Developers together to form a class-action group, speak up.
The ironic side note is that, though my stated salary is over the "exempt" limit if you figure it based on 40 hours per week, I'm below that limit if you figure it on *actual* hours worked over the past year. Sigh...
(And yeah, I'm posting anonymously, for fairly obvious reasons.)
Re:Looks like (Score:1, Informative)
Re:overtime issues (Score:1, Informative)
Ah yes, if only we'd go back to the good old days of the unfettered free market when smart employers loved their employees to death... [boondocksnet.com]
People regularly forget the past, in this case that government intervention evolved for good reason.
Re:Exempt vs. Non-Exempt (Score:2, Informative)
In my experience, many lower level programmers and others (sys admins, even marketing people, etc) work overtime without compensation they are owed. They are either ignorant of the law, or they feel that if they "put in their time" without complaining they will move up the ladder faster.
I have also felt that a lot of people don't ask for overtime because they have heard that it doesn't apply to professionals and they think they are professionals - as a matter of pride, perhaps? Surely a programmers job is just as important as an accountant or lawyer, if not a doctor. However, "professional" in this case doesn't refer to "young urban professionals" or anyone educated with a full time job - it refers to specific jobs that are licensed by the state (thus limiting the number of people who can work in that profession, and theoretically protecting it somewhat from the standard supply and demand job market curve).
Some of what I have just recited to you is rumor, so don't quote me. Personally I have never collected overtime, because my company had a strict 40 hour a week policy - and now I am not working!
Re:overtime issues (Score:3, Informative)
Umm, okay. I'm game. As a person who has hired a few people, here is what worked and didn't work for me.
Re:Mandatory overtime payment (Score:3, Informative)
http://www.laborcounsel.com/FLSA.htm
D above is the stickler. If you are salaried then D will not apply since it is only for employees who are "compensated on an hourly basis". So any salaried employee who's job description fits A,B or C above is exempt from overtime.
Pertinent *California* laws! (Score:1, Informative)
I can't stand it! So many posts and not ONE that seems to address the specific issue at hand -- California's employment laws! All this discussion of generic definitions of overtime etc are great but not the point.
I have had a running battle with my employer about this ever since it took effect, so let me try to illuminate this all..
BACKGROUND
There is a federal law called the Fair Labor Standards Act (FLSA) that defines which employees can be treated as "exempt" (from overtime pay) by employers. In 1992, the US Dept of Labor expanded the definition to include highly-skilled IT personnel. Basically, anyone working in IT in a "highly skilled" position OR earning at least $27/hr could be exempt. Highly-skilled was defined to include managers and anyone employing creativity and/or decision-making power.
Labor unions in California fought this definition and a new state law (AB60) took effect on Jan. 2000 which changed much of the standard ... in California! Specific to IT, it raised the minimum allowable full-time wage to over $40/hr. Effectively, all but the most highly-paid programmers etc wouldn't be paid enough to be exempt from overtime.
THE PROBLEM
I've been arguing with my employer ever since this took effect. At first they agreed to pay me overtime but then reversed their stance when they realized how much overtime I worked. We then merged into another company and this new company is insisting I have "managerial" responsibility and thus exempt regardless of wages; in the new company I have MUCH less responsibility than before...
You can search the internet for "california overtime" and find lots of analysis, e.g. from consultants [management-advantage.com] and lawyers [shpclaw.com].