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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?"
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 :).
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
you get TOIL instead
TOIL for everyone! Woohoo!
Oh, wait...
Yes, it means Time-Off-In-Lieu [of $$$]. (At least I think it does.)
I want to drag this out as long as possible. Bring me my protractor.
What worries me most is hearing of some of the shocking states of workers in the US. and mod me down for complaining about things worth complaining about. Seems every askslashdot with questions about work conditions brings up the "be glad you have a job" comments.
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.
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?
For hourly workers. Skilled salaried workers are in a different boat...
SIG: HUP
I posted this below under 'Go On Strike!', but it seems more appropriate here:
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.
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