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?"

Comments

Calling Captain Obvious...

[I Be Hatin']

...referring to a letter, which I cannot find a copy of. The letter describes a Dept. of Labor ruling...

Have you perchance tried contacting the Dept. of Labor?

Right there with ya...

[Yert]

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.

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_ By_Side.htm.

Your state may give you more rights, but Uncle Sam isn't going to help you any.

-Yert

I know, way too late now, but...

[Txiasaeia]

... I absolutely refuse to work overtime. No matter what the job, incl. jobs in IT, after eight hours I call it quits. My boss a few years ago asked me to stay for OT and I said I couldn't, end of story. We had a project we were working on that needed to get done (waaaay overschedule, but blame the ambitious marketing dept for that), but honestly, my spare time is *precious* to me, and it can't be replaced with some chump change.

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?"

Not yet

[MSG]

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.

Fight, you'll probably win.

[Anonymous Coward]

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.

What's wrong with occasional overtime?

[scott_davey]

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.

Re:What's wrong with occasional overtime?

[ibbey]

At first, I thought you were just trolling, but as I read you're comment, I realized you're serious, just being naieve.

You're right, you should be loyal to the company, as long as that loyalty is returned. But when you work overtime for months & years on end without getting paid, where does that loyalty end? The original poster said in a later follow-up that he was owed in the neighborhood of $30,000. Once the company owes you five digits of back pay, all bets are off, it's time to get a lawyer. If they're willing to give you an equivalent amount of comp time, and that is alright with you, then fine (though if you're an hourly worker, comp time is actually illegal in at least some states). But you should feel no obligation to take comp time if you don't want to. And of course, in this case, it's irrelevant: as he stated in the original article, he no longer works for the company. It's hard to take time off from a job that he no longer holds.

Re:What's wrong with occasional overtime?

[Anonymous Coward]

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

Re:What's wrong with occasional overtime?

[scott_davey]

Just to clear things up, I wasn't trolling. I have a valid but alternate point of view.

"Once the company owes you five digits of back pay, all bets are off, it's time to get a lawyer."
If his employment terms were clear regarding working hours and overtime up-front, it would never have reached this point. This situation would have to have existed for a long, long time to accumulate $30,000 of overtime.

If overtime was an agreed entitlement in his job (whether a legal entitlement or a negotiated one), it should have been reconciled much sooner than this. I'm guessing his employer didn't believe it was an entitlement, he did, and it wasn't brought up often. Again, my point on being clear upfront would have prevented the problem in this case.

"if you're an hourly worker, comp time is actually illegal in at least some states"
Maybe, but in my case I work in Australia. I guess the original poster may be US-based, but other slashdot readers are worldwide, and I was being general. Maybe you should be, too.

But you should feel no obligation to take comp time if you don't want to.
Absolutely, but again, it should be pre-negotiated to avoid confusion. It's all about ensuring you and your boss think the same on the matter.

I acknowledge that the original poster had a dud-deal - $30k in dispute is not a good thing - but overtime per-se is not a bad thing, and I believe we should look at partnering with our employers, rather than screwing them over.

Re:What's wrong with occasional overtime?

[tigersha]

Sure, if they partner with us and stop screwing us over!

Re:What's wrong with occasional overtime?

[frAme57]

You are right that there is nothing wrong with a little overtime now and then. And I agree that teamwork and being there for the team in a crunch is important. But that is only if the whole team's understanding of teamwork is more or less the same.

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.

ha!

[spudwiser]

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.

Collapse before Equilibrium

[MacFury]

We have the capacity to make laws to do whatever we want. We could enact a law that completely shuts our borders to imports/exports if we so chose.

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.

Re:Whoa nelly!

[BiAthlon]

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.

How naive.

[jotaeleemeese]

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.