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12/7 and Overtime on a Salary?
over-timeout! asks: A company I work for (in the U.S.A.) had submitted a statement of work to a client, who waited for a month before signing the work order. The work order explicitly stated a timeline which would start from the time the order is signed. However, the client is insisting on the project being completed by a fixed date, as discussed with our company's management, instead of the deadline that starts from the signing of the work order. Although our company representatives tried to push back on the date, the client refused. Because the client is among our company's biggest customers, our company's management caved in and agreed to their deadlines. Management has told us meeting deadlines means that for the next month to six weeks all of the developers involved will have to work 12 hours a day, 7 days a week. The contractors involved are going to get compensated by being paid by the hour. But us salaried employees are going to get nothing in return for trading in what's left of our life so someone else in the company above us can make money. Obviously this isn't fair, but what are the alternatives in this down economy, where jobs are hard to find?" A related articles on this subject discusses suing for overtime, and California residents should find this companion article pertinent, as well. What can you do when management agrees to a timeline and a workload that may make your job, as a programmer, difficult-to-impossible?
Demand 6 weeks paid vacation after the project has ended. Where I work we work 12+ hours a day for either 7 or 14 day periods. When the work period is up we are compensated with an equal amount of offtime. The $ math comes out the same, the project gets done on time, and you get a sweet vacation to enjoy!
This is a state issue, not a federal one. Look up your state laws and maybe talk to a lawyer.
autopr0n is like, down and stuff.
Uh, yes.
programmers are an exception to the Fair Labor Standards Act of 1938 - 29 USCA Â 213(17) --
 213. Exemption
(17) any employee who is a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker, whose primary duty is--
(A) the application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications;
You can't get overtime as a salaried programmer. I am really sorry.
Pay no attention to the man behind the curtain with all your metadata.
I don't know about the rest of Canada, but in Ontario, the provincial government modified the Employment Standards Act in 2001 to explicitly make this kind of exploitation legal for IT workers and several other categories.
Jason
ProfQuotes
The National Labor Board has a page where you can contact your local office.
Ask them what you can do.
riding round the world on an old motorcycle
To elaborate, in the EU you cannot be forced to work more than 48 hours per week. You may volunteer to work more than 48 hours, but your employer cannot insist that you do and may not punish you for refusing to.
There was a minor fuss when this EU regulation was incorporated into UK law, but it seems to have had no negative effect and provides protection for workers.
Suck figs.
IANAL, but as for the "if you are in California" part, I do recall reading of a California labor regulation that requires giving a person at least one day off a week, and specifically a day off after each six days working (the last presumably to prevent an employer on Sunday telling a worker his day off has been moved from Monday to Saturday). The law states the employer is otherwise guilty of a misdemeanor.
and we have longer paid holidays than you.
Here is an article outlining the rights we have. EU Working Time Directive
There is no god
I am sorry to disagree with my learned colleague autopr0n.
As I mentioned earlier, while wage issues are dealt with in state laws, they are pre-empted if a federal law exists, which in this case it does.
Fair Labor Standards Act of 1938 lays out who can get overtime and what maximum hours are - 29 USCA Â 213(17) is the kicker.
 213. Exemption
(17) any employee who is a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker, whose primary duty is--
(A) the application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications;
You can't get overtime as a salaried programmer. I am really sorry.
Pay no attention to the man behind the curtain with all your metadata.
programmers are an exception to the Fair Labor Standards Act of 1938 - 29 USCA Â 213(17)
I smelled BS on this but I was wrong: See the text of the FLSA, section 213, provision 17.
Sorry for doubting you, pcwhalen. (Might want to link such things in the future, to help people like me who don't take Slashdot comments at face value. Which should be everyone...)
That exemption really sticks out like a sore thumb, I think; take a look at the other exemptions and I think you'll agree this one doesn't fit in, except perhaps in the very limited domain of server operator (who may need to do something for 70 hours in a week, as a sailor might).
Two books that I've read come to mind that deal with this sort of "omg wtf 12 hour days stupid management" deal.
The first is "Death March Projects" by Edward Yourdon. The book deals with so-called Death March projects that everyone expects will end in failure (and similarly doomed situations). There are several sections on how to cope with situations like 12/7 work situations (as well as how to avoid them, but those passages might not be too useful at the moment). The book is interesting and (especially if you've never BEEN in a death march project) rather entertaining. Available at a local University library near you. Roughly 4 hours to skim through it.
The second is a book that should be on every programmer's bookshelf. I speak, of course, of "Code Complete" by Steve McConnell, the manual of 90s programming (when widescale 12/7 programming enforcements took place). In addition to much useful content about creating software, the last few sections deal with how to manage the product team, including help on how to deal with situations such as an enforced overtime. And yes, I know the book is published by Microsoft Press, so go ahead and post "ha-ha MS sux" and all that, thankyouverymuch now please sit down, because this is a GOOD book.
I highly recommend reading both these books, and keeping a copy of Code Complete handy. Now, as to when you'll find the TIME to read such things if you're working 12/7... all I can say is, I have no idea; I'm just a CS student, so I have plenty of time.
http://www.chmodoplusr.com/
Another good book to read for this situation is:
"Death March: The Complete Software Developer's Guide to Surviving 'Mission Impossible' Projects"
by Edward Yourdon
I have a better idea. Show up for 40, but be extra polite, and do everything perfect. Don't call in or anything, just show up at the normal start time, leave at the normal day's end. If they call you into a meeting, don't say anything, just listen. Within 3 days time, you will be fired. But you've already got the lawyer on retainer for wrongful termination at that point.
It may not work, but has a hell of a better chance than "let's all band together".
If you have decent union laws, this couldn't happen. In the UK, it's illegal for unions to strike without holding a ballot of members; in which case the members' interests are the deciding factors in what the union does.
Corporation, n. An ingenious device for obtaining individual profit without individual responsibility. - Ambrose Bierce
I have a better idea. Show up for 40, but be extra polite, and do everything perfect. Don't call in or anything, just show up at the normal start time, leave at the normal day's end. If they call you into a meeting, don't say anything, just listen. Within 3 days time, you will be fired. But you've already got the lawyer on retainer for wrongful termination at that point.
Well, in the Netherlands this wouldn't happen.
First of all, if you are on a one year contract they have to give you one month to find another job.
If you are on a contract for unlimited time it's about two months.
Second, overtime has to be compensated.
And for working on saturdays you get 125% and on sundays 150%.
You can't be fired if you don't want to work on saturday or sunday.
Second, if you are fired you have to go to court and fight the decision otherwise you won't get any unemployement payment.
"Executive, administrative and professional workers. Workers who meet the rather stringent requirements to qualify as executive, administrative or professional are exempt from both minimum wage and overtime requirements of the FLSA. This is the biggest category of exempt worker. And itâ(TM)s also the most controversial."
"...and professionals must perform mostly work that is considered to be intellectual to be deemed exempt."
"Computer professionals. Certain computer professionals who are paid at least $27.63 per hour are exempt from the overtime provisions of the FLSA."
you owned 2 small 8-man software shops.. and you were DIRECTLY REWARDED for the work your team put in.... you owned the company, so no shit you paid yourself extra. The point was that even though I was directly rewarded based on the company's profits (read: dividends on shares), I myself experienced diminishing returns when working excessive hours. was your dev team rewarded similarly? Yes. Not everyone who owns a company is an asshole.
What has *science* done?!? -- Dr. Weird (ATHF)
...this as flamebait - I suggest you check your facts.
m es /correspondent/transcripts/30_03_2003.txt
I also saw this program and have checked out the link. Here is the program transcript (just eliminate the spaces):
http://news.bbc.co.uk/nol/shared/spl/hi/program
scroll down to 00.34.00
Don't mod things flamebait when they are infact very relevant, and very correct.
Doesn't matter whether you are considered salary or not - everyone is paid an hourly wage - whether it is stated up front or is derived from a yearly salary broken down into 52 weeks at 40 hours a week.
Don't let anyone tell you otherwise...
At both the Fed level and in CA, 8 hours a day and 40 hours a week is the non-overtime cut-off. CA goes further by breaking hours down using a 1/40 fraction. And you must have 1 day off for every 7 days...before continuing work unless (yep, there are usually exceptions) an emergency exists that threatens property or life.
Now here is where folks who fall into "professional" fields (not doctors or teachers in this example) get confused. Especially in CA.
If you for example as an IT person get loosely labelled a "computer professional" here in CA you pretty much can't duck it so long as you are not a trainee or paid less than 41.00/hr. The label sticks in most courts and Labor offices.
So what happens when you work overtime as a "computer professional"? Well, you don't get 1.5 or 2.0 multiplied to your hourly wage. Nor do you get minimum wage or a multiple of the minimum. What you really get is straight-overtime. In other words, you continue to get paid just your hourly wage. No more, no less.
This law under Section 510.00 onward under the CA labor code was obviously passed to keep companies from getting killed by mutiplier overtime on employees who are very expensive to being with. It was a break given to companies and the state as well for teachers, doctors, etc under different professional classifications and schedules.
Each state and the Feds have differences on professions and the minimum that professionals must be paid to be declared as such...do your research.
Keep records, and get ready to push the issue. Nice thing about the Fair Labor Standards Act is that if you keep track and provide a bill for overtime - and your employer hasn't done the same using a certified time piece or tracking system - they get stuck with the bill. Have an attorney ready too who if familiar with that act and other relevant labor info.
On the other hand, if you can't stand on your own two feet - you are better off quitting. My experience has been that companies or managers who try to claim salaried employees are not entitled to overtime are operating under questionable leadership and headed for recognition on Fucked Company.
=8-)
If you read the entire section there is an hourly wage basis as well. (17) any employee who is a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker, whose primary duty is - (A) the application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications; (B) 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; (C) the design, documentation, testing, creation, or modification of computer programs related to machine operating systems; or (D) a combination of duties described in subparagraphs (A), (B), and (C) the performance of which requires the same level of skills, and who, in the case of an employee who is compensated on an hourly basis, is compensated at a rate of not less than $27.63 an hour. A company can cause an employee to become treated as an hourly if they treat certain thing to an hourly basis. Some but not all include: docking pay on an hourly basis, and causing vacation to be taken on an hourly basis instead of daily basis or giving comp time on an hourly basis. I.e. treating an employee on an hourly basis instead of a daily basis for pay and benefits. If a company does that, the employee is subject to all section of the FSLA. My former employer had to change some policies after getting caught. Salaried employee are deemed to be paid an hourly rate equivent to their salary divided by the number of hours worked the previous pay period. I am retired, but when I worked the pay slip had an hourly rate on it.
IANAL. However, I just spent two weeks in a jury on a "wrongful termination" case.
In the US, there are only three reasons you can sue for this. 1) The company promised via explicit or implied contract that they wouldn't. (Exceedingly unlikely.) 2) You complained about safety and they fired you in retaliation. 3) They fired you for your race, age or gender.
Since most companies employee people "at-will", they can essentially fire you for any damn reason they want, as long as you aren't a whistle-blower and as long as their reasons aren't discriminatory in specific ways.
The cake is a pie
Umm, that isn't a troll. The FLSA was originally passed in 1938 and all subsequent changes have been in the form of amendments. So referencing it as "the FLSA of 1938" is correct, though arguably as "the FLSA of 1938 as most recently amended in $year" would be more correct...
Nitpicking aside, I think it's *high* time this law was scrapped and rewritten. ~65 years of duct tape and chewing gum is far too much cruft for something so central to the lives of the American workforce, IMHO.
Actually, I once contacted the department of labor on this to see if I was exempt, they referred me to my local columbus whose a ma call it. Long story short, that exemption only affects hourly individuals. If you are salaried, you are exempt from being payed overtime for an entirely different reason, provided you are a professional making more than $250 per week (I think it was 250). I think when that exemption was written, there might have been some debate over whether or not all/which IT workers were professionals, which could be part of the reason behind the exemption.
Getting back on topic, the experience that lead me to contact the DOL was similar to that of the guy in question. My team was tasked with completing a project in an unreasonable timeframe. With months to go, we were told we had to put in 60+ hour weeks. This went on for about 10-12 weeks. There was a stretch where I worked something like 30 days in a row with just one day off. Productivity dropped sharply in those conditions and most everyone was talking about leaving (H1B's and all). After the project was finished, we were treated to strict 40 hour work weeks, and we had the appreciation and respect of most of the people in the company.
However, our graphics designer quit (with no job lined up), our development manager quit as soon as he could find another job, I (developer) just quit after getting another job, and the dust hasn't settled yet. We had a 9 member MIS department that they were planning on growing to 11 this year and now we^H^H they are down to 6, and a few others could still go. It probably would have been a lot worse had 3 of the remaining 6 not been H1Bs.
My advise to the poster would be, if you like your job and your management stick it out. If you don't and you have enough money to go it alone for a while, work a 40 hr week and see if they fire you (if you quit, you can't collect unemployment). If you can't afford to go it alone for a while, buckle down because unless you've got some good connections, you are going to be stuck at your job for a while. One thing I quickly discovered was that it is almost impossible to conduct a good strong job search while working 60-70 hours per week.
If you want to try to reason with your management you might want to try to illustrate to them just how unreasonable those hours are. For example, if you are a rookie making 45,000/yr that boils down to $865/week. Now imagine you are a sophomore intern in college making $12/hr. If you work 60 hours a week, you will make $840/week (12*40 + 18*20). Of course there's benefits and a higher stable paycheck, but it's downright insulting to say that a bachelor's degree and year or two of experience is only worth an extra $25/week.
If your company is desperate enough to screw itself with a work schedule they know won't work, then you need to bail. And don't wait til the work schedule eats you up, just bail.
Weare all familiar with how customers screw us during the life of a project. They wait til it is too late to sign the statement of work, push our net 30 to net 45 or worse, come up at the last second with mods we never agreed with and are NOT in the contract, etc. All these are normal. The problem is when your company lets the customers screw them even before the contract is signed. Just because they are your biggest client it is no excuse to risk losing money on the contract just to keep them happy. The customer knows exactly what they are doing, and if you let them do it now they will do it again and again.
Back at my previous job we had a lot of business with about 5 divisions of a huge american conglomerate. My programmers used to hate working on these projects because the internal clients sucked. I started keeping track of all these separate customers (I was managing the programming team but was not project manager, so I did not have day-to-day contact with all the clients) and noticed a disturbing trend: except for a wild variation in the mood of the customer, all of them tried to screw us with the same excuses and delays! I started digging around and found out ALL employees that have responsibility over software projects are trained by that company in how to intimidate small shops into this kind of behavior!
Don't be misled by all the BS talk about the economy going to the crapper. There are tons of jobs out there! It took me over a month to find a good consultant to offload some of my excess work because there are not enough good programmers out on the street.
Pedro
----
The Insomniac Coder
A former employer pulled a similar stunt on a friend in a different department (5+ hours per week unpaid overtime). He quietly logged his hours on a daily basis with a brief description of what he did. After two years of this he quit (better job) and filed a law suit againt them. IIRC he just had to go to the state labor board and they got him his back pay and fined the company.
IMO I'd do the same. Mention once that you don't agree with unpaid overtime and log your work activities. BTW, judges/lawyers love to see hand written logs. Also check with your state's labor relations board. I wouldn't do anything big until you start work for someone else.
On a side note: where does it stop? Is the next step to start working programers (et al) like MD residents (70 - 80 hours per week, sometimes 36 hours straight). How many hours over 40 per week is too much?
Good Luck.
"And a voice was screaming: 'Holy Jesus! What are these goddamn animals?'" - HST
Wrongful termination is possible in any state
... Which means if there isn't a law specifically against forcing a salaried employee to work more than reasonable hours for weeks on end, with no compensation, the company can fire the employee for not doing so. The employee will almost certainly be granted unemployment even if the company fights it, but that's the extent of the protection the state offers against generic "unfairness."
I *did* mention the Title VII exemptions, which would cover the first two examples.
But yes, as I understand it it's legal to fire someone because you decide they're ugly and stupid, as long as you're doing it on an individual basis and not making a pattern of deciding that sort of thing about members of a protected class (Title VII again). They might have grounds for slander charges, or even assault if you phrase it wrong, but that's a side issue.
I'm not a lawyer, but I had grounds to consult one. Two, actually. The first lawyer I spoke to was one I knew of who normally handled the corporation's side of the case, and who I trusted to refer me to someone who wasn't an ambulance-chaser to handle an employee's side of the case. He flipped through the employee's handbook, which the company owner had written without benefit of counsel. There's nothing quite as interesting as having a lawyer shaking his head and muttering "Oh, shit. Oh, *shit*." very quietly under his breath. I'm not sure he was aware he was doing it.
At any rate, one thing that stuck with me was when he pointed out that the company owner stated that part of the company mission statement was "to treat employees fairly." He said he'd never advise a company to put that in... because Kansas law does not require a company to treat its employees fairly. It merely requires a company to treat its employees in accordance with the law.
All that said, I do suspect there's Wage & Hour restrictions on extreme hours, but sararimen get much less protection than the hourly guys, so I dunno. Never have had to find out, fortunately.
Slashdot's token middle-aged housewife
I know in Wisconsin there are limits, but that also depends on your position with the company. For example, a standard salary employee is not required to work more than 45 hours a week without additional compensation. Management (managers and supervisors) is not held to this limit and could work 55-60 hour weeks without additional compensation.
In the end it depends on the company you work for. I personally believe that 12 hour days 7 days a week is simply unacceptable. Even at 12 hour days 5 days a week I would expect a pretty hefty bonus, otherwise I'd tell them to stuff the job up their bum.
Again, the best thing to do would be to find out the law, get a copy of it, and hand it to you boss.
-d3UCe
At least for Germany, this is not accurate: the law prohibits a regular work time of more than 48 hours a week and 10 hours a day. You may not volunteer to work longer unless you are a freelancer! In fact anyone who would be disadvantaged by this situation could file a complaint ...
I believe that indentured servitude was made illegal more than a century ago, and now we have this wonderful thing in the US called "at-will employee". The vast majority of us salaried employees are just that.
:
For those of you who don't know, if you do not have a specific contract, your a probably at-will. This means that you are free to leave at any time you like, just as your employer, with some restriction, is permitted to terminate your employment. This is wonderful when faced with an environment that becomes unsuitable or hostile, an employee is free to leave as is his wont.
When face with such a situtationas described, you have two choices
1. Work the requested time and try and gain some concession from your employer (additional vacation, bonus, free pot, 'ludes).
2. Tell them to stick it and walk out the front door.
If the economy is that bad, perhaps staying is your best option. Remember, if the deal is that important to the company, there is most assuredly some decent revenue riding on it. With out revenue, you can't have profit, and without profits, or at least solid or increasing revenue, your stock won't go up, your company woan't do well, and later on, you are out of a job any way.
So stop whining and be a man and make a decision.
My feeling has always been that if I'm consistently working more than 40-odd hours a week then the company needs to hire someone extra. However, I'm perfectly happy to work (unpaid) overtime when necessary.
This works to my benefit. My empolyer knows that I'll be there when he needs me, so he doesn't much care when I'm there during lighter times. "Comp time" is a great equalizer. Even during times of normal workload, my hours are very flexible and I have the option of working from home when I want. Nothing better than working with a group who trusts each other.
This has paid out in some tangible ways as well. Last year, after working particularly hard to get some projects done on time, the entire engineering group (all 5 of us; it's a small shop!) was given a week extra paid vacation, plus a performance bonus.
To the original poster, try to negotiate some sort of compensation. You guys are being asked to put in more than double time for 4-6 weeks. It's not unreasonable to expect something in return for the effort. Since the project will be finished a month before your original deadline, ask for a month paid time off. This way the company will keep the customer and the employees happy at the same time. Also ask that the company pick up the tab for things you can't do around your homes. Simple things: hire a gardener to keep your lawns maintained for the duration. Hire someone to do the shopping or handyman projects or whatever it is you'd normally do around the house in your free hours. Remind them that they're not simply inconveniencing you, but your spouses and families as well.
And especially, go pick up Edward Yourdon's book "Death March". It has a lot of good ideas on how to compensate employees who put their lives on hold to successfully pull of projects like this.
Chelloveck
I give up on debugging. From now on, SIGSEGV is a feature.