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Are Coders Exempt From California's Overtime Laws?
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?"
What an amazing idea - usually this sort of thing just gets written into your T&Cs. It certainly does where I work. If you hit a certain salary grade, they don't pay you overtime - you get TOIL instead.
War is God's way of teaching Americans geography
I work for a company where my boss told my group that would like us to train other members of other groups.. ok fine no problem.. then he wants to do it outside our normal 8 hour shift.. haha that went over real well!! we told him we'd do it during work hours or not at all.. and it worked.
This only applies to hourly workers who get paid less than $41/hr. If you make more, you're exempt. If you're salaried, you're exempt. Unless the laws of CA are different from elsewhere (and I worked for two CA companies).
It's been a LONG time since I've been an hourly employee.
I work as a developer for a defense contractor on the East Coast, and they do indeed give paid overtime, as well as flex time. Of course, they've been trying to get rid of that for years. Then again, if they did that, they'd have to raise salaries, because they're vastly non-competitive on base pay alone. Then there's my manager, who tells me to bring my work home and do it on the weekends, without pay, and without charging my time to the contract, which is actually very illegal. And we're not talking minimum security illegal, we're talking federal pound-me-in-the-ass illegal.
/* Steve */
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.
"Every jumbled pile of person has a thinking part that wonders what the part that isn't thinking isn't thinking of"-TMBG
here's part of the California Dept of Labor FAQ 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.
I found this article at www.troubleshooter.com
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.
You seem to be pretty ignorant, since you think all European countries are the same, and that socialism is something very foreign compared to what the USA is. Socialism in europe (which one could be said is possible a small part of the govenrnemnts' ideologies) basically means a democracy with a large public sector, owning infrastructure assets. Ring a bell? You do have roads and schools (makes me wonder) in the USA? The US democracy can be discussed, though... Besides, European taxes range from less than in USA to more than USA (and used for other puropses than upkeeping a huge army), so please do not generalise all countries in Europe. I keep seeing this all the time, and expected more from /. readers. This is not Young Republicans after all.
I suggested in that case they should have built it last year and they said "uh-huh"!
You're only jealous cos the little penguins are talking to me.
The Fair Labor Standards Act, 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.)
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bachiatari na torisetsu o yome!
So basically I can hire developers right out of college and pay them $30k a year and expect them to work 80 hours a week.
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."