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)
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.)
Re:Mandatory overtime payment (Score:2, Funny)
Re:Mandatory overtime payment (Score:5, Insightful)
Re:Mandatory overtime payment (Score:5, Informative)
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:Mandatory overtime payment (Score:3, Informative)
Re:Mandatory overtime payment (Score:3, Informative)
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.
Re:Mandatory overtime payment (Score:4, Informative)
Re:Mandatory overtime payment (Score:5, Insightful)
I'm sorry, but this is laughable on one hand. In my fields, medicine and science, folks with earned doctorates (Ph.D.'s & M.D.'s) routinely get paid a pittance (~$30k) while piling on more hours than most folks can imagine (100-120 hrs/week). Granted, everyone wants to make more money, and there should be limits placed upon the amount of time one should have to work, but when I hear dudes making $75-80k/year bitching because they are not getting paid time and a half for the "extra" 5 hours a week they are working, I just have to shake my head and wonder what I have gotten myself into.
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:Mandatory overtime payment (Score:3, Interesting)
Not entirely.
It's gotten to the point now where Doctors are reduced to employees of Insurance companies who engage in restraint of trade and squeeze doctors from both sides with high malpractice premiums and less than break even re-imbursements for services rendered.
Very true. One of the businesses (independent medical practice) I am associated with is fighting very hard with the local HMO/insurance provider integrated monopoly (intermountain health care) just to survive.
The only problem with the Invisible hand is the damage caused to the economy while people are driven from the professions. Medical residency programs are already beginning to see less applicants than openings.
My folks saw this coming years ago and pleaded with my sister and I not to go into medicine. Hrmmm. Already there are physicians leaving the profession by retiring early or simply leaving the field for another and there are communities where finding someone to deliver your baby is almost impossible. For instance, my mother used to love to deliver babies, however the insurance premiums she was having to pay for this privilege actually were costing her money to deliver those children. Therefore she stopped providing that service in her practice, but here is the kicker....she has to maintain an insurance trailer from the time of the last child she delivered until that child turns 21!. And people wonder why folks are leaving medicine? The irony of this is that if you go into the parking lots of HMO's and "providers", the nice automobiles you see do not typically belong to the physicians. Rather they belong to the management. All managed care has done is move money previously being paid to nurses, technicians, and physicians to a new middle management. It is a farce foisted on the American public.
Move to Europe ! (Score:3, Insightful)
(Too many other reasons to mention)
Re:Move to Europe ! (Score:5, Interesting)
Move to Europe!
I'm an American currently working in Germany which is supposed to be a worker's paradise. I moved here 6 months ago to work for an accounting firm just because I thought it would be fun to live in Europe for a little while.
My work experience has been much less kind then I expected. The company is great, and the people are nice, but the conditions are definitely not 'pro-worker.' My contract has a minimum 40 hour work week, I pay my own insurance, and my salary is less than half what it was in the States. My co-workers are literallly awed by the pay and benefits that I got in the US.
And the job market is just as bad here as it is in the US. In fact, unemployment is even higher here.
Anyone who claims that Europe is a better place to work isn't telling the whole story.
Re:Move to Europe ! (Score:3, Informative)
Re:Move to Europe ! (Score:4, Insightful)
Yeah, because after all, we don't have terrorists killing thousands of people here, because we have this great army, and they're helpless against that...
Oh, wait, bad example.
French and German citizens are not threatened by terrorists because the US Army protects them from them...
No, still bad example; we don't do anything about that at all.
Hm, now, how is it exactly that we are protecting France, Germany, and the rest of Europe? And, er, does it count if we're doing it against their will (see EU opposition to military action against Iraq)? And can we parse out what attacks are *based on* their alliance with us and our bullying tactics, vs. what they'd incur of their own accord if we weren't helping?
funny I thought that was mandatory (Score:3, Funny)
Are you talking to me! (Score:5, Funny)
Don't ask me, buddy - I'm not sure if he's following the rules, either!
Salaried workers (Score:2, Informative)
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.
What are you going to do though. (Score:5, Interesting)
Re:What are you going to do though. (Score:2)
Sorry, but this is bullshit. This is america's bullshit where you have no job protection. Where you have to fend for yourself through lawyers.
Its really less human than say a nice atmosphere of *living* like a european country, or brazil or korea.
There was an article featured here on slashdot by ben stein about exactly this.
I live in texas too. When I can't find a tech job that isnt *nice* and *proper* I do other work, why? because Im happier as a waiter/chef at night and writing open source during the day than when Im an a competitive, non-team like atmosphere.
Ben stein link: http://ask.slashdot.org/article.pl?sid=02/12/16/1
Re:What are you going to do though. (Score:4, Insightful)
Having job protection makes the worker feel better, but it hurts the economy (Sometimes employers just have to cut 5000 jobs to stay afloat - is it better for the company to go out of business because it's paying a bunch of dead weights?) and it eliminates healthy competition.
Re:What are you going to do though. (Score:4, Insightful)
Re:What are you going to do though. (Score:3, Informative)
Re:What are you going to do though. (Score:5, Interesting)
If you win a case in Texas court stating that your former employer owes you income the state will take over the role of collections agent for you. If the company fails to pay within 14 days of receipt of notice their accounts are frozen and the state takes as much money from the accounts as is needed to pay the employee. If there is not enough in the account to pay the back pay than the state will take all the money and release the account. They will then issue another notice to the offending company. Once the company puts more funds into the bank account (you'd be surprised how many do this after having already had the accounts frozen once) the state will freeze the account again and remove the required funds. They repeat this as often as necessary until the former employee has been paid what the court ordered.
I've seen the above happen. One of my roommates left a company that shafted him on salary and when he won the case (mostly because the offending company kept refusing to show up in court) it became hysterical to watch the state smack that firm around until the debt was paid.
Texas also has some interesting laws I am running into just now regarding lay offs and severance package requirements that heavily favors the laid off employee.
Re:What are you going to do though. (Score:3, Interesting)
overtime? hahaha (Score:4, Informative)
overtime issues (Score:5, Insightful)
Re:overtime issues (Score:5, Insightful)
Re:overtime issues (Score:4, Informative)
I suggested in that case they should have built it last year and they said "uh-huh"!
Re:overtime issues (Score:5, Insightful)
Sorry, but no. Exempt status is the new slavery. It shouldn't exist. All people should be paid hourly, period. If you work more than 40 hours a week for any reason you earn time and a half. Life in America would be a lot better for families if mom and dad weren't expected to put in 80 hours a week for their base salary with the threat of being fired looming over their head. Your number one obligation is to the people you love, your family, friends, etc. Work doesn't even place a distant second in my opinion. I'll help out if it doesn't effect my family life, but otherwise when my 8 hours are in I leave for the day and forget about work. Companies don't care about you! You're just a resource to be exploited like a machine processing materials.
Comment removed (Score:5, Insightful)
HR (Score:4, Funny)
They've removed even the Human part of it. You are just a single letter.
I just wonder how long until they rename it "MeatWare Exploitation"
Re:overtime issues (Score:4, Insightful)
Sorry, it can't work this way. For example, one guy is lazy and stupid, and it takes him 3 days to code "Hello World" in Perl. And another guy is -normal- (not even genius), and it takes him 3 hours to do a similar job.
Now tell me how can I pay them hourly if the lazy guy just relaxes, while the other one works?
One fair way is to pay per work performed. You estimate some reasonable time needed, you give the assignment, and whenever they finish is up to them. If the lazy guy has to come on weekends, it's his problem.
The only alternative is to fire the lazy guy. But I fail to see how it helps; and as an employer I really don't mind using lazy guy's help even it comes slower than usual. People are different, and something that is obvious to one may require extensive reading to another.
Re:overtime issues (Score:5, Funny)
3 hours to write "Hello World" in Perl is normal?
Re:overtime issues (Score:3, Insightful)
What does this example have to do with anything? In all of your examples overtime is simply a method where the slow, unproductive, and troubled get paid extra to do the same amount of work (as long as they stick around the office while they are being slow, unproductive, and troubled).
On the flip side, let's say that my wife is sick and I would like to go home early to give her a hand with the kids. As a salaried worker I can leave early without losing money. As long as I get my job done to my employer's satisfaction I can be far more flexible with my time. If my employer is unhappy with my performance he can hire one of the "100 guys standing in line to get a job." Likewise, if I am unhappy with the hours that my employer is asking me work I am free to try and find another job.
Quite frankly, unless you happen to have a job as a security guard or something where the primary component of your pay is your physical presence then it simply doesn't make sense to get paid simply by the amount of hours that you spend in the office. My employer doesn't really care where I get my job done, as long as it gets done. Yes, sometimes that means that I have long days, but sometimes it means that I get to go home early.
Re:overtime issues (Score:4, Insightful)
If somehow you didn't know 80 hours was expected, or if you were lied to in the job interview then quit.
You say as much, you have a family and value the time you spend with them so you have a job that doesn't require more than 40 hours a week. That is a mature decision, you made a choice between available alternatives.
Declaring that there should be justice and plenty for all and the man is trying to keep us down is just plain childish. Ditto for the vague idea that everyone is entitled to their dream job. It doesn't exist, you pick between what is available.
Re:overtime issues (Score:4, Insightful)
Wrong. You are a resource offering your service in exchange for compensation. Employment is a form of trade. By engaging a work contract, you are engaging in trade. It is up to you to determine whether or not your trade is worthwhile. If you don't have enough information to do that, it is up to you to seek employment elsewhere. If you don't have the ability to determine if your trade is worthwhile, then you shouldn't have engaged work contract in the first place. Why exactly should I be punished (via taxes) because you can't make a good decision?
Smart employers will always care about you, because they care about their investment. To propose that employers don't care about you is to propose that they don't care about their business, which is illogical.
In a free market, incidentally, employers who don't care about their employees would quickly disappear. Logically, employees will reward the employers who care and punish the ones who don't, through the process of market competition. But we don't operate in a free market. Government is very deeply entangled in the economic system.
Re:overtime issues (Score:3, Insightful)
"Power politics" is much more accurate as a descriptive term than "free market" for any period of time that I am well informed enough to have an opinion. Wealthy people buy and bought laws that favor them. This doesn't make governmental oversight any panacea. Regulatory commissions that are at all effective tend to become captive of those that they regulate, and tend to create environments where new businesses are severly penalized for attempting to enter an area. Commissioners tend to be hired by companies upon their retirement, and then used to lobby their old friends in government. etc.
Centralization of power is the chief evil that I see here. How to avoid it is much less clear. An employer rep. doesn't benefit from doing a good job, but rather from appearing to do a good job. If a manager can cause the staff to put in more hours without paying extra, it will look good on his record, regardless of what the result is in terms of project quality, correctness, or employee morale. Those are hard to measure.
You can say that a smart employer wouldn't act this way, but you are assuming that the manager is the top management. In a small enough company you may well be correct, but when you start dealing with hierarchical levels, then the social contracts stop working. The top manager gets only a very abstracted image of what is happening, and how the staff feel. He deals mainly with the managers, who deal with the supervisors, who deal with the staff. There can be more levels, but that just makes things worse. Top management can't know the details. So only the easily measured things get abstracted. No malice needs to be involved. But at each intermediate level, the managers at that level are rated by the things that are easily measured and quantified, and passed along.
The result is that, yes, you shouldn't be surprised to be exploited. It's not optimal behavior for the business, but it's optimal behavior for the managers as individuals.
I'm always surprised that labor unions are so disregarded. Yes, they are subject to the same limitations, but they did act as a countermeasure against the more extreme examples of abuse. Corrupt? Of course. Organizations that centralize authority can't avoid corruption in one form or another. And labor unions did centralize authority. And the leaders benefited from making impossible promises. But they frequently didn't themselves know that the promises were impossible. (That information was considered secret, so the companies wouldn't share it. And it still is.) My memories still rankle at the times that management has talked staff into not insisting on a pay raise because the economic conditions were too bad, and then as soon as the agreement was signed they turned around and gave themselves a larger pay raise than the staff had been requesting. One of them said "you should have hired yourselves a better negotiator", but the problem was that the necessary information to make a decision had been falsified. Don't expect anything better. I have it on good authority that our management is (or was) better than most. But don't trust them either.
Unfortunately, this doesn't give much of a clue as to what you should do. Yes, you are probably being illegally exploited. But this doesn't necessarily mean that you should complain to the laws. That might well be to your long-term disadvantage. And this would apply even after you have accepted a new job, and tendered your resignation. Remember, your new boss will be in a machine with the same basic shape, and if he should feel that you are a threat, he will probably find a reason to dispense with your services. And the note in your personnel records probably wouldn't make a good reference for a new job. (And who writes the note? Who gets to evaluate it for correctness? Centralization of authority again.)
Re:overtime issues (Score:3, Insightful)
Remember that voluntary association is the key to free market economics. In a socity based on voluntary association, individuals would be 100% responsible for their choices of employment. Free competition would ensure that only the smartest businesses survive. Why would employees willingly endorse a business that treats them any less than they want to be treated? In a free market society, this would not happen, because employees would not be able to ignore the need to make good choices.
Again, the free market system does not guarantee that "bad" employers do not exist. It only guarantees competition, and employees are a fundamental part of what makes competition work. Government's only role in the free market system would be to protect the individual from the initiation of force. If an employer breaks the employment contract, or otherwise initiates force or fraud against the employee, the employee will either take legal action or simply "vote" for another employer.
Now, I'm not about to read that entire book so if you could briefly summarize what happened I would appreciate it.
Re:overtime issues (Score:3, Insightful)
Each person needs to evaluate job offers they receive....
What job offers? Try job offer. Singular. And if it comes down to a crappy job or no job, I'm going to take the option where I can still eat and pay rent.
If employees believe that they are not being treated fairly then they should resign and move to another employer.
That's nice, if you've got somewhere else to move to. I've been searching for a job for months (I'm finishing school in May), and I've yet to have even a second interview with any company, much less a job offer. What more can I do?
Re:overtime issues (Score:3, Insightful)
Do what i do. In MN, i got fed up with finding a computer job, so i filed for an S-Corp, and opened up a consulting shop for on-site computer/network repairs and installs. It may not be computer programming, but i charge clients around $100 (less for residential, more for businesses) per hour, minimum 1 hour. you would be surprised how fast throwing up an ad in the newspaper will get the ball rolling.
i probably wouldnt be doing this if times weren't tough, but this pays my bills and leaves me with some spending money at the end of the day. ive been doing this for almost 2 years now, and if i found a job not working for myself, i would probably continue to do this on the side.
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:overtime issues (Score:4, Insightful)
Re:overtime issues (Score:2)
I actually looked this up so I can show it to the project manager in case he ever gets antsy and not want to authorize me getting my overtime pay.
Re:overtime issues (Score:2)
Management? -- It is generally forced.
Programmer? - learn to estimate better.
Re:overtime issues (Score:4, Interesting)
If you are working overtime because the project needs to be finished, rather than because it needs to be done out-of-hours, log every hour you work, otherwise the situation deteriates into a vicious circle.
If a project is assigned 5 hours work and it takes 7 hours to finish, say it took 7 hours. If you say it took 5 hours and the client is billed for 5 hours it shows an unrealistic idea of how much work that can be done in a set time. Next time the client will want 14 hours worth of work done in 10 hours. And then the problem gets worse and worse. Eventually the programmers will be working 20 hours a day but only get paid for 8.
I've seen this happen at a company I used to work with. When I started everyone enjoyed working there and we used to go out for drinks every night. Six months later the programmers never came out anymore as they were working long hours for no overtime. Eventually a lot of them quit.
Check your contract. If it says you work 9-5 then work 9-5. Anything else they can pay for.
If you have to ASK... (Score:5, Funny)
You don't know whether you're being paid overtime? Maybe you aren't a software engineer. Does your job involve computers? Just because you work with a large flat surface that you cook hamburgers on doesn't mean it's a Pentium 66.
Contract? (Score:3, Interesting)
Then again, with the current work climate I guess people will sign just about anything to get a job...
Re:Contract? (Score:2, Informative)
Re:Contract? (Score:4, 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.
Overtime and telecommuting? (Score:5, Interesting)
What I am wondering is if this applies to people who are working full time and telecommuting to a company outside of their state? I am under the impression that one falls under the guidelines of the state they reside in, but I could be wrong.
Just for the record, although I do not get paid OT with the CA company, they're very generous in their allotted coding time.
In the Current Economy... (Score:3, Insightful)
Just be happy that you have a job!
Re:In the Current Economy... (Score:3, Insightful)
Roman to Christian, Circus Maximus, 10BC.
California? (Score:4, Insightful)
Overtime pay for programmers? (Score:3, Interesting)
Re:Overtime pay for programmers? (Score:2)
I have seen one of these projects up close, and I can tell you it wasn't pretty. Probably there are examples to the contrary, but in this particular case they ended up spending roughly double what it would have cost them to do it locally in the first place.
Re:Overtime pay for programmers? (Score:2, Interesting)
Re:Overtime pay for programmers? (Score:2)
On a more serious note though, keep in mind that the only reason these outsourcing projects look enticing - any kind of them, white collar work, blue collar work, that's irrellevant - is because the wealth in the world is distributed unevenly.
Re:Overtime pay for programmers? (Score:3, Insightful)
If you really think that then you are in for a rude awakening.
Go on strike! (Score:5, Insightful)
And how much paid vacation time I get per year? 6 weeks. How many weeks do you get in the states? And yes, I am only 26.
Complain, make it better, do something (and get free Coca Cola as mandatory).
(and if you happen to run a cool and nice company, with proper benefits, consider hiring me;))
Re:Go on strike! (Score:5, Insightful)
Yes, be glad you have a job... then in 15 years after y'all are continually 'glad just to have a job' and being paid less and less, working longer hours, with less benefits and worse conditions... it gets closer and closer to not having a worthwhile job at all
No I'm not in the US, yes I'm employed, and I'm earning a decent amount without insane overtime expectations because my co-workers and I won't take shit from our employers. We'll accept when there are hard times or projects that need extreme amounts of dedication to finish, but as for consistent long term crap... no way.
"Be glad you have a job" (Score:4, Insightful)
The tech sector has a glut of qualified people; it's the law of supply and demand. Bad news for me, as I'm about to graduate with a degree in CS.
I'm glad you're employed, and I'm glad you won't take any crap from your employers. But you can afford to feel that way. I bet if you did get fired, you'd be able to find another job pretty quickly.
Re:Go on strike! (Score:3, Insightful)
"Vote with your feet"
Leave, get another job on better terms. If you can't get a job on terms you like better, tough cookies. You are not entitled to one. The idea that if everyone banded together then more money to pay workers would magically appear is rediculous.
You can complain that you get less of the company profits as an employee than the investors. Again, vote with your feet and start a company. People do it everyday. Most millionaires in the US got that way by starting their own business which is still a small business.
If you pass a law that says 6 weeks vacation for everyone you disallow people to _choose_ to take a job that offers more pay in exchange for less than six weeks of vacation.
Re:You didn't think we got out of... (Score:4, Interesting)
The IWW was the second union in the world with a web presence, second only to the Isreali Teacher's Union. I helped the IWW with the first cyber picket of Border's Books, when crackers we assume were hired by Border's attempted to take down our servers. Better than the old days, when companies hired the Pinkertons to kill union organizers...
Today, many unions are large beauracracies whose sole apparant purpose is to fatten beauracrats pockets. Union organizers cut deals with management to the detriment of the workers. Big unions sometimes ignore the plight of workers at smaller companies because there isn't much publicity in fighting those small battles.
But the idea of unions, that is, a bunch of little guys getting together to stand up to the big guy, that still makes sense. On a truely level playing field, in a true free market, maybe unions would be irrelevant. As long as business owners have all the power, while the working people who create the actual wealth in the world have very little, unions will be an important way to keep things a little more even.
Re:Go on strike! (Score:3, Interesting)
Regardless of that argument though, an American can always choose to move to Europe, or Europeans can always choose to move to America. You don't want to work more than 40 hours a week, but you feel that you have no other options in America? That's cool, move to Europe. It's a global economy, my friend. There's no reason to argue about this, just go wherever you're happy.
Looks like (Score:5, Informative)
It's been a LONG time since I've been an hourly employee.
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.
seriously (Score:4, Funny)
your manager occasionally comes down from on high
to mingle with the commoners. Make sure to kiss
the feet of your corporate masters who see fit to
pay you at all. Remember, you are just a smartass
know it all computer person and people like you are
literally a dime a dozen in India. You'll bend over
if you know what's good for ya.
THANK YOU FOR LOOKING OUT FOR US CORPORATE AMERICA!!
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
Why the heck ... (Score:2)
Anyone?
In my company..... (Score:2, Interesting)
I like my worker bee status.... salaried but get paid for time over 40.... I suppose I will eventually be assimilated as well.... but that's tha nature of us tech workers right? Once you hit a certain age you better be ready to enter management of some sort.... you don't see a lot of coders after 40...
There is overtime and ... (Score:5, Interesting)
But if you are just a little short of time, have been surfing too much etc, then it is not overtime, but extra hours you are expected to give by your own free will. Depending on your salary, you might give 5 minutes, 15 minutes or even 30 minutes per day for free. Above that, and you usually get overtime, or have a job where the contract does not list any weekly number of hours.
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.
If I were a full-time programmer in CA... (Score:2, Insightful)
Who cares? (Score:2)
Not getting paid? WTH (Score:5, Insightful)
Exempt vs. Non-Exempt (Score:2, Interesting)
Oh, and the 'be-thankful-you-have-a-job' crowd? Shut up. Just because you're unemployed and bitter doesn't mean that the rest of us who are working our asses off (and believe me, we are) aren't entitled to our employers following the established laws.
Public Companies part of the problem? (Score:5, Interesting)
I work for a fairly large company ($80-100 million), but it is all privately held. They treat their employees with respect (for the most part, though bad managers tend to not be around for too long), have great benefits, pay overtime, heck they even spend a fair chunk of change on the Christmas party.
My theory is that companies like the one I work for, and others of similar size can work a lot better and can afford to treat their employees better if they so choose etc, because they are not tied into the tempests of the public stock exchange. They don't have share holders to constantly report too (well there are share holders, but all within the company). They don't have to worry about losing millions if a bad report comes out. All the money the company has is 'real'. Sure they didn't have the huge inlay of capital at first, but instead a solid business and careful spending, meant that eventually the company became quite profitable and more importantly, remains profitable.
Does this make any sense?
Re:Public Companies part of the problem? (Score:4, Insightful)
When the rich invest in the stock market, it's never a gamble.
*Cough*Lawsuit*Cough* (Score:3, Interesting)
The journalist won and the newspaper got stuck paying 3 years of retroactive back overtime to all their employees. The key point in the case was that the "overtime" was mandatory. So that clause in your employment contract that you're a salaried employee might be worthless if your IT company requires overtime constantly. Might be worth consulting a lawyer, if that's the case.
You can't help yourself here ... (Score:4, Interesting)
The only reason to do really pursue the issue is to help your co-workers, because if you win the court case your employer would be crazy to risk other cases with the other employees, and if he has some brains in his head he'll start paying them overtime as he should. So, as some other poster already said, do this when you've found another job anyway, sue the guy for backpay, and leave your ex-co-workers with a nice present.
Time to unionize. (Score:5, Interesting)
I know what you think. Unions are for trades workers. Not so, ask a school teacher.
Historically in the U.S., unions were created to correct the horrible treatment of workers by large, overpowerful corporations during the robber-baron era circa 1920's and 1930's. The relevance of unions today has been questioned by big business, citing numerous government regulations that work to protect employees from hazards in the workplace, discrimination, work hours, etc. What these government regulations don't protect you from is being treated like shit by companies that cut hours, push for unpaid overtime, cut perks, cut staffing, cut benefits - All while operating profitably.
We live in an age when companies are reclaiming the type of power not seen since the 1920's. Where we have robber-barons. CEO's that cut jobs to improve stock performance while taking $10 million dollar bonus packages.
It works both ways, of course. There are tradeoffs. But I.T. is becomming a basic commoditiy to employers. Don't stroke your ego. While the Slashdot readership may be a clever barrel of monkeys - Inteligent, highly innovative and/or intelligent - The jobs you perform as programmers, sysadmins, network engineers, etc.
I've always been anti-union. But that was before the dot-com bubble burst. I was working at an ISP a few months ago. I had a guy with a Masters' degree and two certifications walk in our door looking for a job. At an ISP.
My fiance' is Swedish. In Europe, almost all jobs are protected by government regulations or unions. You -can- fire someone for poor job performance, but it requires a review process. Not the whim of an asshole manager playing office politics.
Large companies don't like unions. Collective bargaining gives employees power. Review boards investigating alleged employee peformance problems or misconduct puts employees on the same level as management during administrative issues. Employees are no longer drones to be dumped on by management. Peter will in fact NOT work this saturday, Bob.
Did you know that the Teamsters is trying to unionize nursing staff in hospitals across the country? Why? Because hospitals are mistreating nurses. Underpaid, overworked, and being replaced by cheaper H1-B labor.
I'm out of rant for now. Discuss amongst yourselves.
Reality check! (Score:3, Insightful)
The plight of the poor, put-upon IT worker making five times minimum wage with benefits, with his fat ass in a safe office chair instead of a coal mine? Nope, doesn't resonate.
I've always been anti-union. But that was before the dot-com bubble burst. I was working at an ISP a few months ago. I had a guy with a Masters' degree and two certifications walk in our door looking for a job.
And how the *fuck* is unionizing going to keep your dot-com parent company going to keep from going under? The problem today is not companies making shitloads of profit and exploiting their workers more (a la coal magnates). The problem is that the *companies* are doing badly. You can't just squeeze the company and get more money from it, and make everything fine. The people at dot-coms, American Airlines, Enron, WorldCom, AOL, etc, are just going to have a rough time of it. There isn't a nice way to say it.
In Europe, almost all jobs are protected by government regulations or unions. You -can- fire someone for poor job performance, but it requires a review process.
Nothing like red tape to solve problems! Look and see how many people in Sweden would like to live in the US versus how many people in the US would like to live in Sweden.
Not the whim of an asshole manager playing office politics.
Politics will *never* leave the workplace. Even by adding red tape.
Collective bargaining gives employees power.
Unions also tend (unless you have a single-company union, formed of the employees at a single company) to be designed purely to put money in the pocket of *another* large, self-interested organization with a deep love for taking money from those who need it -- AFL/CIO.
Because hospitals are mistreating nurses. Underpaid, overworked, and being replaced by cheaper H1-B labor.
You want to *unionize* to keep companies from replacing workers with foreign workers and moving jobs overseas?
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.
It isn't just programmers (Score:3, Interesting)
I have been told that to make my stats (required workload) that I need to do what the other techs do and work through lunch. Or, if hungry, to go through a drive-through and eat in my car in-route. That is an hour that they are TELLING me to give them right there.
On the other end of the day we are to be at a account at 17:00. If any of you have ever watched a copier tech work you would realize the being at work at 17:00 means finishing about 17:30-17:45. That extra time is all unpaid. The theory is that we get comp time but it is pretty clear that requesting comp time would be a bad idea. The companies often reply that summers are slow so we are not logging a full eight hours during those months, as if it is our problem that they cannot come up with a steady workload.
The management answer is real simple, "If you think you can do better somewhere else then go there." All this for $10usd/hour (and don't even get me going on auto reimbursement). No need to say, "go back to school." I have a B.A. (as do about 1/5 of techs. The number of new hires with degrees is increasing (or should that be,without degrees laid off). I am going back to finish my masters, not so much as that I feel it will improve my situation as for something to do.
In general we need unions but the unions will not even talk to us. I was part of an effort that tried to interest the unions in copier techs nd the response was that if we were not members of a union then they could (would) do nothing. Having my minor in H.R. I know that there are too many pitfalls for people who try to unionize on their own.
Basicly it is an exploitive situation that ignores labor law. And yes, I am looking for another job
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:Gotta love the Liberals (Score:5, Interesting)
The labor movement in the United States is given credit for establishing the 8-hour workday and the 40-hour workweek. In actual fact, what made those things happen is that the first companies to adopt those standards, as opposed to the prevailing 12+ hour workdays, saw their profits INCREASE immediately, as their scrap, rework, and accident rates went down immediately. Tired workers make mistakes and those mistakes cost money.
Time-and-a-half pay for overtime serves a dual purpose. It both attempts to compensate the employee for the additional toll on his life, AND it serves to remind the employer that those additional hours are HARD on EVERYONE.
Eventually, as overtime hours increase, scrap, rework, injury, sickness, and everything else will also increase. Overtime pay laws are there to "persuade" the employer to hire more people rather than working their existing staff to death.
Re:Everyone's above the limit (Score:2)
Everybody to the limit [homestarrunner.com]
Re:l33t (Score:3, Funny)
Re:I would say (Score:4, Interesting)
Re:I would say (Score:4, Insightful)
Riiight. This has worked so well in Europe. In many countries (Denmark and France, IIRC) they have rules like this and their unemployment is skyrocketing.
Between this and California's new "download tax" I guess they want to be sure no tech development EVER happens there again.
Re:I would say (Score:4, Insightful)
There is a balance somewhere. In the U.S. there have been MANY instances where employers have screwed their employees, and that has lead to child labor laws and unions. Unfortunately quite a few lazy people seem to want to take advantage of companies. The real problem is greed.
I kinda laugh at some of the companies around here that talk about "retirement" benifits. Yeah RIGHT!
I saw many times Dow Chemical move "older" employees around the country when they started to get close to retirement. They tried hard to get them to quit... I could go on.... Like how the automotive industry actually killed people who wanted to start up a union... But on the other hand I see union auto workers today that make a slug look like the greatest worker in the world...
Re:I would say (Score:5, Interesting)
Well, I made over $41/hour working for my last employer (quite a bit more, actually, all things considered, viewed from a 40 hour work week perspective). At my last job, my title was "Vice President of Technical Services". But, I can say that overtime *should* be paid, regardless, and here is why:
My last job (2 years ago): In return for a great salary, plus a company vehicle for my work and personal use and full health insurance benefits, I worked anywhere from 60 - 80 hours per week, 7 days a week, and holidays.
At the time, I thought it was worth it: I was the "star" employee, first technician hired, bright, motivated - all the other techs came to me for help, and as a result, they could successfully complete their service calls with my assistance, thereby benefitting the customers and the company. My customers loved me, and I was happy doing what I loved to do.
For awhile, I enjoyed being "it", and thought that the time I spent working was the natural result of my skills and experience, and the need for my company to make money to offset my salary and benefits.
Now, I realize that I was wrong. I almost always billed enough time, directly or indirectly, during a normal business week, to justify my remuneration. The late nights, weekends and holidays were just "gravy" for my employer, since I was never paid for any of that time.
Weekend server migrations/upgrades (to save downtime for the customer, of course!): Billed at full rates by my employer ($95/hour at the time). LAN/WAN infrastructure improvements, the same.
Was I being compensated well? Absolutely. Was it worth the time spent? In my opinion, in retrospect, no.
At any given point, ALL of the time I spent beyond a standard work week was at my personal expense, just extra money generated for my employer. Over time, it became expected of me, and I bought into it, for years, as the price for employment, for being "good" at what I do. To my shame, I demanded the same from all of my technicans as well.
Training? Forget about it! My last boss wouldn't authorize training during business hours. If I wanted to learn, I did it on my own time. He would graciously pay for certification tests, but God forbid I should fail the first time.
Sadly, it has been my experience over the past 15+ years that this is the paradigm for all small-medium sized service companies, especially those owned privately. The technicians are merely cash cows to be milked. Technicians around here (Upstate New York) are salaried, not because they are being paid higher than normal, generally, but to save on overtime.
When I was fired from my last job (officially for "having been late for no compelling reason after having been previously warned" - tell me that a VP that sets his own hours can be late?!?), I set off on my own. I've done well over the past 2 years, and, when I needed additional help, I hired good technicians as subcontractors, and paid them the lion's share of their billable time (85/15 split - they get the 85 percent, after all, they are doing the work). I'm not getting rich by so doing, but I sleep well at night.
Over time, what I've come to realize is this: Money is a good thing, but money earned to the detriment of others ("greed") is not. The vast majority of managers, executives, etc. that have never been in the trenches, possess no technical skills to any great degree, view we geeks as chattel. The phrase "human capital" has been mentioned in the IT trade mags of late (notably in InfoWorld) - it underscores the problem, the perception that we geeks are merely plug-in components of a company's technical prowess, to be used, discarded and replaced at whim.
So, to wrap this up - Sure, $41/hour is a lot of money, but at what cost to the person earning it? If that person works 60 hours per week, salaried, what was once $41/hour becomes about $27/hour, and lessens with every additional hour worked, to the employee's detriment, NOT to the employer's.
So, I think that overtime, generally, is a good thing: It uses the motivation of management to generate revenue as a brake: The more we geeks work, the more the employer has to pay. It is a perfect example of negative feedback in its truest sense, and removes the incentive on the part of the greedy to exploit us egregiously.
Just my opinion.
dj
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:You're fired. (Score:3, Insightful)
You sound every bit as whiny as the Generation X'ers you're complaining about. "I shouldn't have to pay people overtime, they make enough already! I shouldn't have to listen to my employee's complaints, so I'll just hire people who don't complain."
You make some great points in there. Employers and employees owe it to each other to be fair to each other. But your points are undermined by the way you try to make them. Thanks to you, a good many readers are even more inclined to think of their employers as heartless bastards who would rather fire them than give them a cent above what they absolutely must.
I like my job. I'm very happy with it. But if I asked for a raise, or for overtime, and got a speech like this in response, I would be out the door right then.