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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 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.
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.
... 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.
Man, you have been lucky. Very, very lucky.
Picture working for a company for $30k. It's the only job you can find out of college after a year of looking...
Picture being required to work 80 hour weeks. Not once in a while. Every week. Not just days and evenings, but weekends too. Why? Because your boss decided one day that you should answer the main company phone while writing code. Seems everyone else is out of the office. He just released a new version of the software. Without *ANY* testing whatsoever. Forget the beta test, we're talking no in-house testing. The coders working on that software weren't really very skilled. So the clients have permanently corrupted data. All of them. And that wasn't an atypical week.
Picture that paydays roll around, frequently, where the company can't make payroll. Why? Because the boss is siphoning off the company's assets to furnish his new home.
Picture, after working this hell-job for over a year, the boss decides to require his employees to sign a contract. A non-compete contract. Five year time limit. Anyone producing software is considered a competitor. The little fact that it's illegal, and won't hold up in court, is irrelevant. The threat of litigation will be sufficient to keep you unemployed.
Picture you refuse to sign. You're fired on the spot. Boss's wife goes through your bag, stealing your personal diskettes on the chance that they might contain company data. (They didn't. I never got them back.)
You're paid your second-to-last paycheck as you're ushered out the door.
You go back the next day, to talk to the boss, and try to come to some sort of a reasonable compromise.
His first words are "Were sorry we had to cancel your paycheck. But we will reissue it right after your exit interview." No further reconciliation is possible. That is the second-to-last paycheck he is talking about. He is unwilling to discuss your last paycheck.
You file for unemployment. Your [now] ex-boss challenges it, and commits blatant perjury. He claims you just got up for no apparent reason and left. The unemployment compensation judge believes him, and refuses to look at your evidence. Your claim is denied. Unemployment was paid to you for 7 weeks, and now they want it back.
My friends, some bridges **NEED** to be burned.
The story does have a happy ending.
About that second-to-last paycheck: I wasn't terribly trusting of them by that point. So, immediately after receiving it, I went to their bank, to their very branch, and cashed it directly to cash. Then drove to my bank and deposited the cash. Naturally, my ex-boss was unaware of this when he told me he had canceled it.
I challenged the unemployment ruling. Forced the judge to accept my evidence, or go on record before her superiors as refusing it. Naturally, she checked it out, and promptly lost the minutes of that meeting. In our third hearing, there was this strange mixup in her office. My ex-boss, with his highly overpriced lawyer, wound up in the wrong building, in the wrong city....
By the conclusion of that third hearing, I had my unemployment. The only question was whether the unemployment compensation folks were going to pursue criminal legal action against my ex-boss.
As for my last paycheck. I went down to the local law library, and read up on our laws. Followed them to the letter. Showed up 60 days later, asking for my paycheck. When they refused to pay me, I sent a lengthy letter to our state's Secretary of Labor complaining about it. Apparently the Secretary of Labor can freeze the assets of a company to pay their employees. Or ex-employees.
I was paid in full.
And the icing on the cake: Just after I left, my ex-employer defaulted on a bank loan. He created a new company, and moved the clients over to that new company to do so. I heard about it. Called up the bank. Asked to speak with their legal department. Explained that I was a disgruntl
I know for a fact that there are places where the question at an interview, "You don't mind working a little overtime now and then, do you?" is their way of asking "You don't mind grabbing your ankles and letting us have our way with you, do you?"
My own job is a good example.(disclaimer: I was not there when it happened but enough credible people have told me the same story, and the politics I have observed here make me believe that this is true) About two years ago there was a big push on one project. The engineers (only three or four at the time) were told to do everything they could to "stay ahead of the trades". These guys put in twelve to eighteen hour days to get enough drawings out fast enough that no one would stand idle on the job. The whole time they were told to log their hours so they could take an equal number of comp hours off after the project was done.
A few months later the production manager who told them over and over again that they would get those comp hours abruptly changed his story. Suddenly he had "no recollection" of ever promising comp time.
The moral: get it in writing.
This wasn't a matter of putting in the occasional forty-two to forty-eight hour week. This was some guys busting their asses for several months, with the promise of some reasonable compensation when they were done. When the comp time evaporated, it became a de facto pay cut.
They like to tell us that we are akin to managers, and must work until the job is done. But really we are just white collar tradesmen. We are expected to generate enough drawings, based on our boss' vague, directionless, self-contradictory instructions to keep every worker here busy. But somehow - maybe because we do it sitting in front of a computer all day, and it doesn't look like 'real work' - they get us for a flat rate. And they will squeeze as many hours out of us as we will give them.
"In a hierarchy every employee will rise to his level of incompetence". The Peter Principle