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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?"
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.
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.
What you're talking about is totaly illegal. The only thing a previous employer can legaly say about you when called for a reference is that you did or did not work there for a date range given to them. They can not comment on your work history or their opinion of you.