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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
It really works, you get decent holidays, you dont get screwed out of your retirement. It has democracy inside ! (no inherited positions of power, for example) It depends much less on imported oil. (which will run out in your lifetime, enjoy)
(Too many other reasons to mention)
Right now most IT companies that my friends work for, and mine as well are really putting the screws to the employees. Our company is demanding more work, giving scanty raises, and lowering our benefits. Unfortunately I live in Texas which is traditionally a state that favors the employer heavily. Good luck with your OT issue, but if it was me right now I would probably just lay low being the heartless coward I am :). I know that even if you win you will probably lose your job for not turning off the lights when you leave or something stupid like that. If I were you I would just take the screwing they are giving you, keep track of your hours, and if you ever get fired or quit then sue for back pay and take the nice fat bonus at the end :).
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.
What I've found (and this isn't really a California thing, but more like something I've found regularly at companies) is that overtime isn't mandatory, but if you have a deadline, you need to finish your responsibility by then. If you can do it within the normal work hours, then great! More power to you! But if you can't, it would reflect badly on you if you didn't put in the extra time, despite the fact the company doesn't pay for overtime. It's one of those "you're doing it because you want to, not because we're making you" despite the fact that you are really in a situation where you need to in order not to get a bad review.
yours,
kbs
I doubt it. Not when there are thousands of programmers in countries like India who will gladly code for next to nothing. For every programmer who manages to get overtime pay due to this law, half a dozen will end up unemployeed because their job got shipped to foreign developers.
The situation for people working in the US seems to be quite bad, at least to me. Isn't it time you guys start a proper union and start raising some hell?
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;))
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
I'd be quiet if I were you and just be happy that :)
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!!
The most important thing any republican needs to know.
Around here overtime is one thing. That is when you are told specificly to stay longer to work on a specific project. Needs authorization from a manager / project manager in each occasion. That will cause extra money.
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.
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.
IT businesses in USA seem to be the western equivalent to Nike sweat shops. Why would you NOT get paid for spending the remaining hours of your already limited time off work? Here in the communist soviet nordic countries, and most civilized EU countries, you get paid 150% or 200% of the hourly wage. And before you start talking about bringing down companies to their knees by them actually paying their workers, last time I checked, the nordic software/tech companies are doing just fine. But here I guess the terrorists have already won or what?
This is slightly off-topic, but it's related. A lot of the crap that goes on whether it be screwing employees out of pay, muddled decisions etc - it seems to me that it most often happens to companies that have publically traded stocks.
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?
The law exists to protect exployers from over working their employees. So why should a person making a high salary not have that protection? Personally I'd vote for the hourly limit to be 35 hours before overtime kicked in. Then maybe there wouldn't be so many unemployed people and people would get more time off (and less money of couse).
This is typically a catch 22 situation. Sure, if your employer doesn't pay you overtime even if he is required to by law, you're fucked either way. Or you don't make a point out of it, and get paid less than you deserve. Or, do make a point out of it, sue the guy, get your pay and leave your job. Because, face it, the boss is going to be pissed off about you taking him to court, and you're never going to be able to reestablish a normal working relationship with him. He'll get you in his own way, either buy making your life miserable or by looking for a reason to fire you, which he'll always be able to find.
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.
---
"The chances of a demonic possession spreading are remote -- relax."
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.
The reason you hear "be glad you have a job" so often is not a surprise: many Slashdotters are OUT OF WORK, and have been for a while. It's also the reason why those currently employed are scared to speak up: they think they'll have a hard time finding a new job, too.
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.
Have you read the Moderation Guidelines Addendum?
This is a long disorganized rant.
.. Are no longer "magical." The magic is gone folks, and they're just jobs now. Sorry to break this to you.
:)
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.
THIS SPACE INTENTIONALLY LEFT BLANK.
I work as an office equipment repairman (copier tech.). We have been told quite clearly that the company will not pay OT. But we are still to meed the call load and be working (call into the the auto-dispatch) by 07:30 and on the job at 17:00.
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
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.)
--
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."
This is slightly off-topic, as I am a technician, not a programmer.
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
Now they don't even call it "Human Resources" - they call it HR.
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"
www.eFax.com are spammers
It kinda comes down to this. If you believe that employers will not screw their employees to make a profit, and that those employees could "just find another job"; then you also believe that these laws are a bad idea. However, if you believe that employers will screw their employees at the drop of a hat for a profit, then you want protection laws.
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...
The more I learn about science, the more my faith in God increases.
I was a member of the IWW tech workers union in San Francisco. The IWW was founded as a response to the evils of trade unionism. Back in the early 1900s, people realized that corrupt unions were worse than no unions. In the IWW, there is only one paid position, the elected head of the union. Everyone else is volunteer. Dues are paid directly to the union, never taken directly from your check.
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.
- None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton