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Fighting for Your Overtime?
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?"
If you live in a cold climate, you might want to wait until it warms up for the best effect.
Do you even lift?
These aren't the 'roids you're looking for.
Have you perchance tried contacting the Dept. of Labor?
I know god exists. I read it on the internet, so it must be true.
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.
Three Squirrels
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 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.
_ By_Side.htm.
Interestingly, the DOL website 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
Your state may give you more rights, but Uncle Sam isn't going to help you any.
-Yert
Truck driver, plumber, Linux systems engineer.
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?"
Condemnant quod non intellegunt.
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.
Did you ever see the movie Willard? It has one look at how to deal with an arse boss, who isn't afraid to be sued...
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 micromanaged), you might get somewhere.
Consider also: is it worth it? If it's a couple of thousand dollars, is it worth the "I sued my former employer" chain that will hang around your beck for the rest of your career? On the other hand, if you're looking at tens of thousands of dollars, it might be worth it.
You should seriously consider how important this battle is to you. Litigation between employees and employers seldom produce "winners". It is also quite possible that a future employer may look at you with a jaundice eye when evaluating you as a candidate. You can effectively blacklist yourself. No one wants a problem employee.
;) Your lawyer and his/her legal staff should be doing this research.
Reality check:
OT doesn't exist in IT -- it's a simple fact of life. Folks who commit their time do so for the intellectual stimulation and/or strategic financial rewards (nothing to do with OT).
So, if you're still willing to push the issue, I suggest that you pursue alternate counsel. IANAL, but I pay them lots of money
I come from Europe, and was triggered by the topic. It's amazing that you don't get paid for overwork. In Europe it's generally settled by law. No boss there even comes up with the idea of abusing their employees in that way. My suggestion: vote for candidates who have the guts to say that raw capitalism is NOT holy. Because it is not. Without a strong - decent - government, raw GREED will rule. Look at US laws: corporate-greed=law.
Our company switched everyone to salary, everyone lost about %25 in OT. So everyone wanted to stop putting 60 hour weeks in, Management stated "50 hours are now the normal work week". My group is salary, but every other group I work with gets OT, so paging someone out in the middle of the night, they get paid, I'm just expected to do the work and still show up at 8am. That brings up the other point, if you worked nights, you could come in late when paid Hourly. Now we are salary, they want people to work nights and still show up at 8am.
Also they want us to Lie on our timesheets, we cant put down if we worked on weekends, we are only allowed to put down 40 hours on our timesheets, even if we work more. So if you have 40 hours not including the 5 day business week, you have to use sick time or vacation time.
Lots of employeers screwing over its people. My vendors are told they have to put in 12 hour days 7 days a week, if they want to keep thier jobs. So, I know it could be worse.
OT seems to be the corporate enemy. Presidente Bush wants to make Police, Firemen, and EMT's salary. Thats just what I want, someone bitching about no OT when they have to save my ass from a fire.
Get elected by giving tax cuts, then taking the pay away. 2 faced moron.
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
-- This is not legal advice or solicitation. See an attorney for legal advice. My views, not anyone else's..
When you are routinely instructed(sic) to perform OT for no reward, frequently on mundane tasks, and you are neither intellectually or financially rewarded for your time and effort you are in a lose-lose situation - there is no incentive for an employee to perform under these conditions and it quickly engenders employer/employee dissatisfaction and conflict.
As others have noted standing up for your rights may end up with your job going elsewhere. So you need to make the decision in light of this fact, and perhaps with acceptance that you may require a new job.
I have had employers try and swindle me out of various rights (often through illegal contract clauses) and have had to confront them on these issues. I have always made a point of directly approaching the Director involved, supplying them with copies of the relevant legislation and asking them to rectify the situation. Most of them are more than willing to comply and avoid the risk of investigation and penalties.
Finally, talk to your fellow employees regarding the problem you are facing and any resolutions achieved. I approached one employee regarding their contracted sick/holiday days being barely half of the federally mandated level. This was quickly rectified in MY case, but each of the other employees was kept in the dark and not given their entitlements until they fought for them. If I had not discussed it with them the employer would have continued to exploit them.
Q.
Insert Signature Here
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.
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.
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?....
This sig no verb.
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 occasionally.
In fact, it is written into my employment agreement - "occasional overtime may be required from time to time". I get paid in time-in-leiu.
I also get to come in 1 hour later the next day for each hour I work past 9pm, if I need to work back. So if a server catches fire, I will stay back and fix it, and if I work until midnight I don't have to start work again until midday the next day.
I work for a small company, and the way I see it it is in my interest to help that company succeed - if they go broke or lose a big contact because I refused to work overtime, I may lose my job.
My overtime works out to be around 1-2 work-days every month, of which I get days off in return.
Sure, project blowouts can be blamed on other people, but lets be realistic and say that often it is the programmer's lack of estimation ability that causes problems, too.
Whoever is to blame for overtime requirements, the main thing to realise is that you form part of a *team*, and teamwork involves professionalism and responsibility from all members of the team (you, your boss, your project manager and your customer).
For me this means I work occasional overtime when required, and my boss ensures it does not get excessive. I also get rewarded for it with time-in-leui, which helps me, and my boss.
My advice to the original poster - in future, work out your conditions before you agree to work for a company to avoid these problems. And consider time-in-leiu as an alternative to overtime payments.
Why all the top semiconductor manufacturers are either US or Asian.
"Eve of Destruction", it's not just for old hippies anymore...
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 out like adults and figure out a solution that suits you both and makes you both happy. You'll find your employers are just as human as you are, and would rather make a friend than an enemy. (They don't need an engineer running around telling people what a sweatshop their hole is, either! See, it goes both ways!)
And next job you get, get overtime conditions in the contract if you really want it. Don't rely on federal or state law to back you up, work it out like adults. Treat the employer not as a "proletariat", but as a business partner. They are giving you cash and you're giving them your time, talents, and sweat. It really is a business negotiation and not slavery.
I'm surprised your lawyer hasn't clued you in on this. Maybe he smells blood in the water and is willing to sacrifice you for it. The best lawyers I've met have always resolved things out of court farily and without hard feelings between the parties. Heck, they actually would encourage me to make the call because (1) they charge big $$$ for it and (2) things work out better when the parties talk to each other directly.
The other lawyers are out for the cash and don't give a damn about their clients. Is he representing your long-term interests or does he only see the payola?
The radical sect of Islam would either see you dead or "reverted" to Islam.
Shut up and get back to work! :)
... 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 legislatively (min wages, etc) will only make it worse, last longer, and prevent the markets from reaching equilibrium. It's sad, but it's a fact of live, and we're all going to have to adjust to a world market and quit thinking isolationism will solve everything. It will just leave us behind, since India and China are growing at around 8%/yr on avg and are destined to be even bigger economies that the US. The US is not the be-all-end-all of world economies, we can't rest on our laurels. The only constant is change.
The biggest trick the devil pulled was letting lawyers become politicians so they can write the laws.
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.
.cig - what you do after winning a good flame war
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 leave and it won't be taken off you annual leave."
"I just can't sit while people are saying nonsense in a meeting without saying it's nonsense" J Watson, Sci Am 288:(4)51
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 locally.
While I agree that America needs a wake up call and that we, in general, have gotten lazy...if this short sighted, ateoo attitude of employers is allowed to continue, we face disasturous economic collapse.
OK, in what forum do you wish to conduct this - my journal, email, or what?
My email (in obfucated form) is listed in my info.
www.eFax.com are spammers
Why in Christ's name did you put his name on your resume?
This is why we all need a connected italian friend.
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 had expected) and goes in a wild downsizing exercise.
Guess who got the axe? Yea, the loyal employee that would spend any amount of weekends and unsocial hours working and always sung the prises about the company. He was kicked out of the building with a cardboard for his personal belongings escorted by two guards. A vulgar thief would get more deferential treatment. That after 11 years of loyal services.
That is loyalty for you. I will be damned, I am professional and will work to deliver a good service for my employer, but I feel no emotional attachment whatsoever to the company I work for, because the only relationship between my company and my is a business transaction: they pay, I work, we are happy. Fortunately I enjoy what I do thus it is much better than it sounds.
IANAL but write like a drunk one.
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.
4 1/29CFR541.3.htm 2 40.shtml?tid=187&tid=98&tid=99 2 23211&tid=124 3 42259&tid=123
http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_5
http://www.dir.ca.gov/DLSE/dlse.html
3 slashdot links on this subject:
http://ask.slashdot.org/askslashdot/03/06/15/1952
http://ask.slashdot.org/article.pl?sid=03/02/11/0
http://ask.slashdot.org/article.pl?sid=03/03/24/2
And a couple of labor lawyers:
http://www.overtimelawyer.com/
http://www.wmlaborlaw.com/
PS. I stayed hourly and it ended up being a $17000/yr raise with the OT.
I had removed the obfuscated version of my email - it's back now.
www.eFax.com are spammers
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...