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Fighting for Your Overtime? 82

Posted by Cliff from the seeking-legal-documents dept.
Papa Legba asks: "I am in a battle, with a now ex-employer, over the unpaid overtime that I incurred while working in their IT department. I refused to accept the answer 'you are a computer guy, you don't get overtime' and did some looking. My research has turned up these relevant documents: the definition of exempt Computer professional at section 13(a)(17) of the FLSA managed by the Department of Labor, the amendments in the ESA labeled C.F.R.541.3(a)(4) and C.F.R.541.303 , and a site referring to a letter, which I cannot find a copy of. The letter describes a Dept. of Labor ruling from December 4, 1998 that set out who qualifies as a computer professional. Can anyone find this letter, and is there any more documents that I am missing. I have a lawyer but this is a very specific area and I want to do this right. Has anyone else fought this battle?"
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Fighting for Your Overtime? More

Fighting for Your Overtime?

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  • ...referring to a letter, which I cannot find a copy of. The letter describes a Dept. of Labor ruling...

    Have you perchance tried contacting the Dept. of Labor?

    • Yes I did. The national department of labor refered me to my local office. The local office does not answer there phone but instead has a machine take your name and number. They still have not called me back.
    • Hopefully the overtime your ex-employer didn't pay you will (if you win the case) be able to pay your lawyer and the court fee's...

      If your going to court over a measily 200 bucks -- going to court over the matter is practically useless.
  • If you have lawyer experienced in employment law you should do fine. It's astonishing how quickly things can change when the letter comes from him or her instead of you.

    This is a good example of why every employee should keep close records of the hours they work, and keep them off-site. It's a hassle, but in a situation like this having a written record can make all the difference.

    • Ideally, if you can have someone else keep them and/or have timestamps, it's even better.

      I interned for a guy during the summer of 2000. he paid me for the first half of the summer, but not the second half. The state I was in allowed damages to be 200% of the original wages, plus attorney's fees, plus damages.

      After 2+ years, I just didn't care anymore. I had graduated from college, had a real job, and had pretty well moved on with my life. So I went for my wages plus attorney's fees and got it.

      Anothe

  • Right there with ya... (Score:5, Informative)

    by Yert ( 25874 ) <mmgarland3NO@SPAMgmail.com> on Tuesday January 27, 2004 @11:19PM (#8108646)
    I've had this battle before, in both IT and physical security (ie, rent-a-cop) occupations. Security isn't exempt from OT, and therefore, gets overtime - the company I was at [etps.net] refused to pay OT and also went so far as to change the defined "workweek" to 7 days, period - even scattered across 1 month. IRS and DOL define a "workweek" as 7 consecutive days. A nice sit-down talk with the owner with printed documentation in hand and a few phone calls from myself and my fellow cow-orkers to the Regional Dept. of Labor Administrator, and we got our OT.

    Interestingly, the DOL website [labor.gov] has news concerning proposed changes to the definition of a "computer professional", but unfortunately for you, the current rules are so vague as to define just about anyone in the IT industry as to be exempt from OT. A good overview comparison document is at http://www.labor.gov/_sec/media/speeches/541_Side_ By_Side.htm [labor.gov].

    Your state may give you more rights, but Uncle Sam isn't going to help you any.

    -Yert

  • I know, way too late now, but... (Score:3, Insightful)

    by Txiasaeia ( 581598 ) on Tuesday January 27, 2004 @11:35PM (#8108778)
    ... I absolutely refuse to work overtime. No matter what the job, incl. jobs in IT, after eight hours I call it quits. My boss a few years ago asked me to stay for OT and I said I couldn't, end of story. We had a project we were working on that needed to get done (waaaay overschedule, but blame the ambitious marketing dept for that), but honestly, my spare time is *precious* to me, and it can't be replaced with some chump change.

    Of course, I make it my personal mission to work as hard as I can while I'm at work so that nobody has an excuse to can me, but I've never been fired, I'm not short on money, and I've got plenty of time to spend with my family, read books, and post on /.

    If I *were* to give you some advice, I'd say forget about it until you decide to quit or move on - and just simply stop showing up for work. If they don't give you the decency to pay you OT, then why should you give them the decency of 2 weeks/1 month's notice? If they call up and ask where the hell you are, just say "Oh, mmmm, yeah, about that, I've decided to quit, mmmkay? Did you get the memo?"

    • While I to some extent agree with you about "you don't pay me for OT, you don't get OT", I vehemently disagree with you about "simply stop showing up for work."

      First of all, failure to formally quit can get you in some nasty situations, especially if you are a programmer - you could get nailed for violating NDAs, among other things. At a minimum, you should hand in a formal letter of resignation your last day there.

      HOWEVER, I really wouldn't suggest even that - it may hurt, but give them the 2 weeks notic
      • I once didn't notice the a 2nd drive in a raid array turn its yellow light on. The users lost their days work, and I spent a long weekend camping in the server room changing dlt tapes. And I made an extra $3000 OT for my experience.
        • I want to live in the world that you live in. You "didn't notice" a drive go into warning state and you pulled some overtime to fix it, in effect getting paid for your own mistake.

          I had an array show me all red lights (due to a quirk in the RAID card, don't get me started) and pulled a 120-hour week doing a bare metal build and data restore (from old, shitty DDS tape on an older, shittier, SCSI-2 tape drive). I got it done, the users had maybe an hour total that they couldn't access their e-mail at all (
      • You'd posted something the otherday discussing your headaches with Vx doing somekind of APCO25 waveform work. You'd joked that anyone who understood what a PSK was and how to make your DSP grok it should call you.

        I'm not looking for a job but would like to hear more about your experiences with the air interface work.

        ciao
      • In principle I agree with you, but it seriously hurts to do your employer a favour and help them out w/written notice if they've been gorram bastards. Maybe just tell future employers that your NDA was so restrictive that you can't even give out the name of the company that you worked for (but detail exactly what you did, and drop enough veiled hints to help them figure it out)? Ya, I know, I like my life to be *WAY* too complicated ;)
      • Honestly, why should another employer care? After all, it's not like anybody give proper notice of layoffs anymore! If you've got another job, just go. Drop a note and leave...that saves you from embarassing yourself, and from any reprecussions the company may do...I have worked for at least 3 places where the bosses fired people for giving notice!

        Also, it helps to be up front with future employers that you left on bad terms with a past one. It would help to make sure you left a resignation letter, a

    • Depends on the state that you're in. In Pennsylvania, where I am, an employer can fire you for refusing to work OT. I guess this is an artifact of they days when most of the jobs here were Unionized industrial labor.

      When I got hired by my last employer, during the interview they asked me why I was leaving the employer before them. My answer included the fact that they had been forcing us to work OT. I was told that the new employer never did this. 8 months later, they did exactly that. Forced OT.

      My advice
  • I had a few friends who chased the overtime route. They made a bit of headway with their employer before the final answer was found. You can read more about the result here [wired.com].
  • I hate to be negative, but you're probably in for a fight that you'll lose. First, take a gander at your job description. If you have management responsibilities of any kind, forget overtime. If you work fairly autonomously and make your own judgement calls in a lot of situations, you can probably hang up the overtime case. If, on the other hand, your boss gave you a schedule of exactly what was to be done at the beginning of the week or you worked under very close supervision (not meaning you were micr

  • Not yet (Score:5, Informative)

    by MSG ( 12810 ) on Wednesday January 28, 2004 @12:57AM (#8109458)
    I haven't had to actually push this issue, but a coworker of mine and I looked in to it... The two items which I think applied most in our situation were:

    #1) In order to be exempt from overtime, your job just require of you independant authority and discretion. In our case, both of us go through extensive change control and approval from IT managers. That's not independant discretion.

    #2) You must not spend more than 20% of your work week involved in activities which aren't covered by the definition of "exempt". In our case, we both spend more than 20% of our time assisting users. Tech support is definitely not covered by the definition of "exempt".

    When you do talk to your lawyer, ask him about those points.

  • Fight, you'll probably win. (Score:5, Interesting)

    by Anonymous Coward on Wednesday January 28, 2004 @01:04AM (#8109530)
    I had an employeer try to screw me. I was the Director of Network Operations. They owed me back pay, vacation pay, etc. About $65,000. They owed my brother about $20,000 (he worked for me). Basically I went on salary deferal for a few months while cash was tight and they owed most of it in vacation time (I worked so much that if I took time off it was comp-time) so in 5 years I never took any vacation time.

    This was in CA. I filed a complaint with the Labor Board. These guys suck but are on your side, they tried to get me to settle for pennies on the dollar. I told the Chairman of the Board that if the bankrupcy judge gives me pennies on the dollar or tells me there is no money for me then that is ok. But until that moment you owe me 100% of every damn dollar I earned.

    Long story short, 6 months later we are awarded $85,000. They appeal, then settle out of court 3 months later when they realized they would loose. The penalites they owed me on top of the back pay, vacation pay was $15,000. Bascially the law states that if they "PERMIT YOU TO WORK" they owe you. If you can document the overtime they owe you. It also helped that I'm a type A personality and anytime someone tries to screw me I go for broke, don't bluff and fight to the end.

    It only gets tricky if you were a manager/supervisor that directly supervised several employees. But as a manager or supervisor they owe you your salary, even if you only worked 1 minute in the pay period (it goes both ways, as a manager you are there when you need to be, but don't have to be there when YOU feel you have your job completed). I was technically a junior executive.

    When they appealed and it went to the County Supreme Court I hired an attorney. I pre-paid my legal @ 150.00 an hour. Cost me $4500 but I got to keep most of my hard earned money instead of giving the lawyer 40%. You don't need an attorney for the Labor board to help you in CA. Not sure about other states.

    If you're willing to fight you can win.

    If they do owe you it will be with penalites and interest. Best of luck.

  • IRS (Score:2)

    by dacarr ( 562277 )
    Yes, a little irrelevant, but perhaps the IRS would be interested in this company? I mean, if they refuse to pay overtime, perhaps they're not keeping up on taxes either?....
  • Reading some of these posts I'm amazed at how selfish some people are.

    I mean, Slashdot is full of unemployment/job-exporting rants, yet when it comes to helping out their employer in a time of need, the advice seems to be "fuck the boss - I'm going home".

    And the same people probably wonder why their jobs are being exported.

    Personally, I feel a sense of commitment to the project I work on and the company I work for. If it needs a bit of overtime, I'm happy to provide it. Not excessively, but occasiona

    • Re:What's wrong with occasional overtime? (Score:5, Insightful)

      by ibbey ( 27873 ) * on Wednesday January 28, 2004 @02:45AM (#8110107) Homepage
      At first, I thought you were just trolling, but as I read you're comment, I realized you're serious, just being naieve.

      You're right, you should be loyal to the company, as long as that loyalty is returned. But when you work overtime for months & years on end without getting paid, where does that loyalty end? The original poster said in a later follow-up that he was owed in the neighborhood of $30,000. Once the company owes you five digits of back pay, all bets are off, it's time to get a lawyer. If they're willing to give you an equivalent amount of comp time, and that is alright with you, then fine (though if you're an hourly worker, comp time is actually illegal in at least some states). But you should feel no obligation to take comp time if you don't want to. And of course, in this case, it's irrelevant: as he stated in the original article, he no longer works for the company. It's hard to take time off from a job that he no longer holds.
      • Just to clear things up, I wasn't trolling. I have a valid but alternate point of view.

        "Once the company owes you five digits of back pay, all bets are off, it's time to get a lawyer."
        If his employment terms were clear regarding working hours and overtime up-front, it would never have reached this point. This situation would have to have existed for a long, long time to accumulate $30,000 of overtime.

        If overtime was an agreed entitlement in his job (whether a legal entitlement or a negotiated one), i
        • Sure, if they partner with us and stop screwing us over!
        • Scott,

          In the US there are laws concerning overtime. Unless your terms of employment (working responsibilities, conditions, and agreements all together) specifically exempt you from overtime you are due overtime pay by federal law.

          What this means is that your employer has to pay you for overtime unless there is a very specific and legal reason NOT to have to pay you overtime. There need not be any advance agreement with the employer for you to be eligible for overtime pay. Overtime pay is an entitlement as
        • "if you're an hourly worker, comp time is actually illegal in at least some states"

          Maybe, but in my case I work in Australia. I guess the original poster may be US-based, but other slashdot readers are worldwide, and I was being general. Maybe you should be, too.

          Umm, pointing out that your solution may be illegal in some jurisdictions is quite general. Had I said "Comp time is illegal.", your reply would be valid. Since I didn't say that, it's you who is not being general (I suppose that I could have bee
          • "Where you're being naieve is in your assumption that it's the employee in this case that is doing the screwing over. Perhaps things are different in Australia, or maybe you've just been lucky, but in corporate America, it's the companies that usually do the screwing. Certainly there are exceptions, but in this case, it sounds like he has a perfectly reasonable case."

            I don't like being called naieve, but still, there is a fair point in there. Companies are usually better at screwing than people are. An
      • Working for 4 weeks and not getting paid is one thing working for years is just plain stupidity.

    • Re:What's wrong with occasional overtime? (Score:5, Interesting)

      by Anonymous Coward on Wednesday January 28, 2004 @04:27AM (#8110534)
      Man, you have been lucky. Very, very lucky.

      Picture working for a company for $30k. It's the only job you can find out of college after a year of looking...

      Picture being required to work 80 hour weeks. Not once in a while. Every week. Not just days and evenings, but weekends too. Why? Because your boss decided one day that you should answer the main company phone while writing code. Seems everyone else is out of the office. He just released a new version of the software. Without *ANY* testing whatsoever. Forget the beta test, we're talking no in-house testing. The coders working on that software weren't really very skilled. So the clients have permanently corrupted data. All of them. And that wasn't an atypical week.

      Picture that paydays roll around, frequently, where the company can't make payroll. Why? Because the boss is siphoning off the company's assets to furnish his new home.

      Picture, after working this hell-job for over a year, the boss decides to require his employees to sign a contract. A non-compete contract. Five year time limit. Anyone producing software is considered a competitor. The little fact that it's illegal, and won't hold up in court, is irrelevant. The threat of litigation will be sufficient to keep you unemployed.

      Picture you refuse to sign. You're fired on the spot. Boss's wife goes through your bag, stealing your personal diskettes on the chance that they might contain company data. (They didn't. I never got them back.)

      You're paid your second-to-last paycheck as you're ushered out the door.

      You go back the next day, to talk to the boss, and try to come to some sort of a reasonable compromise.

      His first words are "Were sorry we had to cancel your paycheck. But we will reissue it right after your exit interview." No further reconciliation is possible. That is the second-to-last paycheck he is talking about. He is unwilling to discuss your last paycheck.

      You file for unemployment. Your [now] ex-boss challenges it, and commits blatant perjury. He claims you just got up for no apparent reason and left. The unemployment compensation judge believes him, and refuses to look at your evidence. Your claim is denied. Unemployment was paid to you for 7 weeks, and now they want it back.

      My friends, some bridges **NEED** to be burned.

      The story does have a happy ending.

      About that second-to-last paycheck: I wasn't terribly trusting of them by that point. So, immediately after receiving it, I went to their bank, to their very branch, and cashed it directly to cash. Then drove to my bank and deposited the cash. Naturally, my ex-boss was unaware of this when he told me he had canceled it.

      I challenged the unemployment ruling. Forced the judge to accept my evidence, or go on record before her superiors as refusing it. Naturally, she checked it out, and promptly lost the minutes of that meeting. In our third hearing, there was this strange mixup in her office. My ex-boss, with his highly overpriced lawyer, wound up in the wrong building, in the wrong city....

      By the conclusion of that third hearing, I had my unemployment. The only question was whether the unemployment compensation folks were going to pursue criminal legal action against my ex-boss.

      As for my last paycheck. I went down to the local law library, and read up on our laws. Followed them to the letter. Showed up 60 days later, asking for my paycheck. When they refused to pay me, I sent a lengthy letter to our state's Secretary of Labor complaining about it. Apparently the Secretary of Labor can freeze the assets of a company to pay their employees. Or ex-employees.

      I was paid in full.

      And the icing on the cake: Just after I left, my ex-employer defaulted on a bank loan. He created a new company, and moved the clients over to that new company to do so. I heard about it. Called up the bank. Asked to speak with their legal department. Explained that I was a disgruntl

    • How naive. (Score:3, Insightful)

      by jotaeleemeese ( 303437 )
      Former boss of mine, he was working for the same company for the last 10 years and goes into this charade (not disimilar to yours) about overtime and loyality and all the rest.

      When after that I explained in no uncertain terms I will not do unpaid overtime, he threatened with, get this, no bonus. Since I don't work for a meagre bonus, I said that was fine with me.

      A few weeks later company panics because profits are lower than expected (mind you, they did not loose money, they just made less than what they

    • Your problem, sir, is that you are a rational person working for a rational boss, who in turn works for a rational company.

      When the company is NOT rational, REQUIRES 20 hours PER WEEK of UNPAID overtime, simply as a REQUIREMENT TO WORK, that's a problem. I apologize for the caps, but for quite a few unfortunates, it truly is that bad a situation; you takes it and you likes it, or you'll be replaced with somebody else.

    • You are right that there is nothing wrong with a little overtime now and then. And I agree that teamwork and being there for the team in a crunch is important. But that is only if the whole team's understanding of teamwork is more or less the same.

      I know for a fact that there are places where the question at an interview, "You don't mind working a little overtime now and then, do you?" is their way of asking "You don't mind grabbing your ankles and letting us have our way with you, do you?"

      My own job is

    • For starts %0 hours a week is +1.5 extra FULL DAYS of work per week! 60 hours is +3 extra Full days per week....that is the problem. Most IT workers are still paid The point is that most people weren't hired to work 60 hours a week. And when you confront employers with a %20 to %50 pay increase to compensate they get all mean and rude...and still don't back down from the OT.

      You seem to work for a company that follows the "spirit" of the rules and not just the letter...I feel happy for you!

    • Simple, if you weren't working overtime, the underemployed of /. would have more job opportunities.

      Working overtime is ok *on occasion* but I've actually asked employers in interviews what their workweek is like and they said "we prettymuch expect you'll be working overtime." Why not hire more people then? ('course, it costs them more to hire enough people to fill the work, so the force overtime.)

      A simple rule I follow on overtime: if I set a schedule and I might not make it, I'll work extra. If I screw u

  • Whoa nelly! (Score:1, Redundant)

    by jgardn ( 539054 )
    The last thing you want to do is tarnish your reputation with a lawsuit against your employer.

    Your next potential employer is going to call your last employer. Your last employer is not going to say nice things about you. Your chances of getting hired are going to be much lower, particularly in an industry with such a high rate of unemployment.

    I'd sit down and resolve this out of court, amicably, and leave on terms where they wouldn't mind hiring you back. This doesn't mean "bend over", it means work it o

    • Re:Whoa nelly! (Score:2, Informative)

      by BiAthlon ( 91360 )
      What you're talking about is totaly illegal. The only thing a previous employer can legaly say about you when called for a reference is that you did or did not work there for a date range given to them. They can not comment on your work history or their opinion of you.
      • They can not comment on your work history or their opinion of you.

        Of course they can, and they do. "What is your opinion of him as a worker" and "Would you hire him again" are the top two questions on any reference worksheet.

        Show me where it says that this is illegal, because if it is, I need to have a sit-down with my last boss.
        • Well, ok, but the employer can get sued, and the manager making the comments can get sued personally for defamation of character..

          There are law firms and investigative firms which specialize in this area..

          Some employers might think that they can get away with anything. They are wrong.

        • Show me where it says that this is illegal, because if it is, I need to have a sit-down with my last boss.

          It's illegal in most states, contact someone that knows something about the labor laws in your area.
  • ... if you really want overtime, your job is going to India. Let's see... $60/hr Union job, 15 min smoke breaks every 30 min, "I just work here, Bub."-attitude, and older "untrainable" workers (vs.) $10/hr illegals paid under the table (physical services like cleaning) and Indian contract workers in Mumbai for $6/hr. If you can't do 5-6x their work, you better look for alternate employment, im sorry, but we're in a period economists call "transitory frictional adjustment." Any attempts to prevent it legi
    • We have the capacity to make laws to do whatever we want. We could enact a law that completely shuts our borders to imports/exports if we so chose.

      Currently, the market favors the employer. They are running a race to the bottom in prices which in the long run, hurts everyone in the US.

      If we allow them to screw us out of overtime, it puts more money into their hands and less in ours. This in turn, gives them more money to buy in cheaper labor outside of our country while giving you less to spend local

      • Agreed, businesses only care about maximizing profit at any human cost. We have the capacity to change laws, but not the motivation nor the attention to so affect change. We allow ourselves to be screwed, so we are complicit in this (silence gives consent, read "A Man for All Seasons"). If we really cared, we would ask for a raise or overtime benefits or unionize or whatever.

        The problem is that America will eventually become a play-ground for the well-to-do, and a service economy for the pleasure and ma

  • ha! (Score:3, Insightful)

    by spudwiser ( 124577 ) <spudwiser@hotmLIONail.com minus cat> on Wednesday January 28, 2004 @03:54AM (#8110400) Journal
    you and your fancy shmancy degree got you a big ol SALARIED job! work hourly for a company that doesn't straight screw it's employees, never fight for overtime again. hell you might even start to fight overtime!

    ok, I think I'm running low on karma so I'll stop being a jerk-shit.
  • I was once salaried in a job and there really didn't get overtime unless I was on call and for scheduled weekend work which my salary didn't cover. Any other overtime I did beyond the standard 37.5 hour working week wasn't paid and sometimes I worked 50-60 hours a week. Sure I didn't enjoy it, and even human resoucre told my peers and myself that we are not obligated to work overtime. Anyhow, I asked for two weeks leave on time and my boss said "look, you've done a lot of overtime, I'll let you take the
  • My company made all of the Systems people go hourly based on a previous lawsuit that they lost regarding some assistant managers. Anyway, After we were made hourly, we all had to fill out a weeks worth of "job diaries" that explained everything we did during the day. This was to determine if we made enough decisions to be declared management/exempt. During this whole thing did some reserch and included some links below. Hope this helps. Oh, and this is in California.

    http://www.dol.gov/dol/allcfr/ESA/ [dol.gov]
  • Hopefully the overtime your ex-employer didn't pay you will (if you win the case) be able to pay your lawyer and the court fee's...

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