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Law Firm Fighting For White Collar (IT) Overtime
Maximum Prophet writes "Programmers and System Administrators typically don't get overtime. A law firm based in Nevada is looking to stand up for white-collar workers around the country, trying to reverse decades-old (and incorrect) thinking about what it means to work in an office. 'Computer workers of various stripes, for example, have commonly not been paid for their extra hours ... But under California law, the exemption applies only for workers whose primary function involves "the exercise of discretion and independent judgment." In numerous lawsuits, Thierman and other plaintiffs' attorneys have alleged that legions of systems engineers, help desk staff, and customer service personnel do no such thing. Of programmers, Thierman says, "Yes, they get to pick whatever code they want to write, but they don't tell you what the program does ... All they do is implement someone else's desires.'"
It sounds like they are only doing this in California, which has ad the IT exemption for decades. For the rest of the country, IT workers were getting overtime until the so-called Fair Pay Act of 2004, which exempts IT workers (and other fields as well) from overtime, in exchange for guaranteeing overtime pay for anyone making less than about $23,000 a year. Of course, there are no IT workers making such a low wage (except in India), so that means all IT workers became affected.
I, myself was getting overtime pay until 2005.
My blog
Ok, I'm a salaried network admin/systems technician. When I applied for my job as a systems tech, I was assured it would be an 8-5 job. Well, about 2 weeks in I am asked to handle a week of after hours calls. This is fine, except my company is in the Medical/PACS industry. If radiologists can't get their images, people could die. Some nights I will get 10+ calls. Do I get comped? No. Do I get anything for this? No. I applied to build servers and be a backup for fielding calls and was assured a certain set of hours. I did my time on helpdesk and would like to think I'd finally graduated past it. I would just like to see some sort of gratuity from the company for me having to literally go 2-3 days without sleep sometimes because of late night calls. Its bad enough when I work from 8 until 10 at night, but then to get calls most of the night after, I think I deserve something.
If the la says overtime must be paid, contracts who say otherwise are null and void.
It's not for nothing that there are laws, because companies cannot be relied to do the right thing.
I used to work in a company that used to put a lot of pressure on the programmers to work long hours. One old guy there came at 9am and left at 5pm every day, and refused to work any later. They didn't get rid of him because he was good and reliable. In retrospect I realise all of us ambitious youngsters were being taken for a ride and the old guy just wasn't having it.
Not all IT jobs require massive (or any) amounts of overtime. I may work the occasional 50 hour week because of deadline concerns, sure, but I'll never be a permanent 50+ hour employee.
My dad worked in a union for 30 years (small steel finishing plant), topped out at about 50K per year. He had to work a lot for what he got paid (I worked there for a summer, sometimes it's real hard work, sometimes it's easy, but it's always long hours). I make twice as much as he did and I sit all day.
I realize how good I have it.
If you don't like your job, there really are plenty of jobs in IT that don't require overtime, just go find one. One place I worked at pretty much dictated 8:00-4:30 (or 8:30-5 but everyone did 8:00) every day and everyone leaves (medium insurance company IT dept). I didn't like getting there at 8am, but I sure did enjoy a 37.5 hour work week (after lunch).
-- What did Spock find in Kirk's toilet? The captain's log.
I get overtime as a coder. And I have no compunction about saying "Sorry, I'm busy this weekend, I can't do any overtime." when asked (not that I turn it down all the time, but I like to have my time off...off).
You crazy Americans with your 5 days holiday a year, 80 hour working weeks and complete lack of overtime.
My Journal
Simple solution. Contracting. Since I changed, I never looked back. I will NEVER work for free. I will work as long as the job requires, I will bust my ass to get things working, but, I will not do it for free.
It is a plain and simple thing that took ME awhile to realize.
If salary were a two way street ("sure you can leave early this week, since all your work is done") it might be ok, but I find for today, especially in admin jobs, where you are on call and carry a pager (some people actually do this for free??)...salary is just a way to squeeze time away from you for free.
They'd have to pay me a LOT of salary to go back to it.
IMHO, in this day in age, there is no such thing anymore as job loyalty (from either party), nor job security. If that is the case, then the two main things that would draw a person to a direct, salaried job are gone. That being the case, you might as well contract. YOu can find long term contracts....possibly be a contract employee of a company which is kind of a hybrid thing (benefits, and hourly compensation), so it isn't always a hit and miss occupation. If you are really good at what you do, you can do the complete indie thing....make great bill rates, and enjoy more time off.
Sure it takes a bit more paperwork, but, you can incorporate yourself, get tax breaks, write things off.....and you don't have to work for free any more.
Light travels faster than sound. This is why some people appear bright until you hear them speak.........
the problem is not whether the law allows the bosses to pay or not pay for extra hours, its all about availability of workers willing to not demand for extra hours to be paid.
I mean if I start to insist on getting paid for every hour over 42h/week I work, my boss will fire me and replace me with someone that wont ask for overtime.
Before the government started dictating terms of employment, working 12 hours per day, 6 days per week was the norm. Maybe you want to go back to that plan.
In New York, HR came to IT and requested job descriptions of all the IT employees; which would ultimately decide who was and was not exempt from Overtime due to the Fairpay Act. IT Mgmt complied, and must not have been told the reasons for the request, because after which 85% of IT employees, HR deemed eligible for Overtime. Not only that, we were eligible for retroactive Overtime for time work since Jan. This was in April. I earned Overtime for a full year at Sys Admin hours, all the time knowing this was never going to last. At my next review, Mgmt gave me glowing reviews and "promoted" me. They gave me a new title, which then exempt me from Overtime pay - however my job duties and hours remained the same. My base salary increased by 3%, which is standard at my company. No matter what the law says and how it is written, Mgmt will always find ways around it. But you knew that going in. No one ever went into IT for the long lunches and 35 hour work weeks. Oh, and just to put this in perspective, my brother-in-law served in the US NAVY for 12 years, has held many jobs outside of the military, has multiple degrees in engineering, currently flies passenger jets for an international airline...and he makes less than I do. For what we do, it's not that bad pay.
As far as people who don't want government involvement - there are a host of laws limiting what we can do. The Taft-Hartley law allows the government to call off any strike. States are allowed to prevent certain agreements between workers and management (a "closed shop"). Overtime, at least below a certain salary level, is one of the things countering this. If you don't care about the ITAA etc. pushing the salary level for overtime down, down, down until it disappears, all that will exist are laws that give weight to the employer, and have the government take away your freedom in contract-making with the employer (Taft-Hartley, so-called right-to-work laws etc.) Even if you want to do away with all such laws, from our perspective it makes sense to keep these laws until the ones hurting us are done away with first, as in the meantime these just balance things on our side against the laws against us.
I'm a medical student who will be graduating soon and entering residency. I hope any progress from this affects us, too - currently the AAMC (which regulates the medical residency programs) limits interns and residents to an 80 hour work week. Yes, these are the people charged with learning to save lives WHILE saving lives. 80 hours per week. Most of us will sign some utterly unfair, incomprehensible, thick as a dictionary employment agreement with our hospital that basically signs our life over to them for the next 3 to 7 years. Choice tidbits of "policy" included in these contracts mention that we may be expected to be on call for anywhere from 18 to 36 hours - on hospital grounds - multiple times per week. The 80 hours limit, while "technically" weekly is only calculated on a monthly basis. Fun times.
It's great that such important people as those who maintain our information technology infrastructure are about to get a financial boost... what about those of us earning $55,000 a year or less with 8 years+ of college and post-graduate education and charged with taking care of you and your family? Everyone envisions doctors as Corvette-driving, boat-owning, million-dollar mansion homestead people. I assure you that in today's marketplace, NOBODY goes into medicine for the money - unless they're making drugs for a big-pharm company or doing boob jobs.
...In a given week I do 15 hours of REAL actual work...? Let's be honest with ourselves. We work overtime because a LOT of what we have to do must be done during non production hours. There are some days where we're in support mode and just read websites all day...
Ask not what you can do for your country. Ask what your country did to you
When the company hires you as salaried, that time you're 'giving' them is factored into the pay.
Bullshit. Only one company I ever interviewed for told me up front that overtime was common. I didn't even bother to go back for a second interview. Most companies tell you 40 hrs, but then expect more, and more and more.
If they had to pay hourly beyond it, you wouldn't get as much in the first place.
What nonsense is this? They'd either hire someone else, or adjust to more realistic timelines. If the company is constantly giving you 60+ hours of work. I've been lucky to have all my employers pay me the rate I want and still not expect more than 40 hours.
The company I work for thinks I put in a lot more overtime than I do because I'm so productive. I do put in -some-, but not nearly as much as they think. The deal works out great for both sides. If this law goes through, I'll get a huge paycut (or fired, and someone else hired) and no overtime as well. I'll just lose money no matter how it goes.
That's your own fault; you're letting them think you're less productive than you really are. You need to fix that.
That said, this would be a great idea if they also tarrified outsourced labor. If they don't, it will only drive companys more to China.
If companies suddenly had to start paying overtime, salaries would have to be adjusted.
The ethical thing to do would be to adjust executive salaries down and let everyone else's stay the same. Not going to happen, but I hope everyone realizes that this is a result of institutionalized greed, not a case of not enough money going around.
Go back to the 1950's and the difference between the CEO and the janitor's salary was a hell of a lot smaller.
Most companies tell you 40 hrs, but then expect more, and more and more.
I've had a pretty similar experience. When I was interviewing for my last job, one of the company's managers explicitly told me that there would be about two weeks a year of 'crunch time' in which everyone would work longer hours, but otherwise it would be a 40 hour week. They offered me a salary that I considered fair for that amount of overtime, and I took it. Flash forward to actually being on the job and finding out that working a few hours of overtime every Tuesday/Wednesday/Thursday was expected, and a full day+ every other Saturday and Sunday was mandatory.
Of course, that being said, I didn't need lawyers to straighten that out for me; I just found a better job ASAP, as did nearly all of the more skilled people who were given a similar bait and switch by that company. Market forces can't fix everything, but in this case it worked out all right. (My exit interview included the same manager, who flat out denied his earlier fradulent claim, although he'd made it to many of us. Weaselly jackass.)
Anyway, the point being, the 'You agreed to the contract!' sentiment I'm seeing in some of the posts on this article is something I can only agree with if overtime was presented accurately during the interviewing process. I've rarely seen a company that does.
I'll agree..it takes a bit to learn at first, especially if you're like me, and not a real organized, paperwork type person. But, it is easily learned. I got a CPA to show me how and what to fill out. A few hours every month is not that big a price to pay if you want to make and KEEP more of your hard earned money. You pay bills don't you? This is pretty much just like adding a few more bills to the pile as far as time and paperwork go. I'd argue the benefits outweigh extra time consumed.
"In addition, most employer companies will not contract directly, you have to go through another shop, that takes a cut. Nowdays, being independant is far less of an option than it used to be."
To a great extent yes....but, one side benefit of this, it does take a bit of the risk of having to look for all the jobs yourself...which keeps a lot of people out of this type gig. No, you often don't get the full bill rate, but, getting $55-$70/hr isn't that hard, and it can make for a great living if you don't spend a ton, and wisely invest. One thing that companies WON'T do...is generally hire you 1099 directly...too much a risk to them from the IRS or you claiming to really be an employee later in life.
Incorporate yourself (I went the "S" corp route)...and when you do a direct contract gig....you can do it corp2corp which shields everyone from the "employee" entrapment possibilities that can happen.
"The attitude that if you are not willing to jump through all the hoops that the big-business/government coalition puts in your way, you do not deserve to earn a decent wage is just Nietzscheian nonsense."
Well, I don't know about the attitude comment. I take the attitude that I have to be willing to do what it takes or do that bit extra to excel in the current work environment. As I wrote before, I perceive that jobs and employment have changed a great deal....especially since my parents' time. Since I do not perceive a direct job to have the benefits of old (job security, loyalty to employees, room to grow) I see a new paradigm for working if you want to make and keep money.
And also, I guess it depends on what you think a 'decent' wage is. If you are willing to settle for what they'll pay you direct...and the unpaid OT...more power to you. But, in this day in age and the current market and where I think I forsee it going....I think the only way to have a positive employment future is to go more on your own, and take charge more of your own HR needs. YMMV of course.
Light travels faster than sound. This is why some people appear bright until you hear them speak.........
It looks like your PhD lab rats are getting screwed... perhaps you need a union?
IMHO, in this day in age, there is no such thing anymore as job loyalty (from either party), nor job security. If that is the case, then the two main things that would draw a person to a direct, salaried job are gone. That being the case, you might as well contract.
But that would involve taking responsibility for my own welfare and treating my labor and their money like it's some sort of 'thing' to be 'traded'!
No, I'm afraid a much simpler, 'fairer', and efficient solution is to get some fancy-pants lawyer to sue the crap out of the employer I hate so much and yet am unwilling to leave. In the process, the lawyer will make tons of money, the company will have to cut a few jobs to pay for the legal fees on both sides, but at least I'll get half of what I asked for and they'll get their comeupance!
Seriously though, you point out that 'in this day and age' there is no loyalty on either side. I'd say that's partially a reflection of the unwillingness of workers to ask for (demand?) what they're worth. Labor is a business transaction, you shouldn't hate your business partners or let them treat you 'unfairly'. Get a good idea if what you should be paid, ask for it, and leave if you don't get it.
I read an article a few years ago comparing jobs now as opposed to 20 years prior. It said that fewer employees are asking for raises but theft by employees is way up. It quantified the two and estimated that the employers are probably coming out ahead. People are less willing to play by the rules and just play hard; they have this impression that the only way to get ahead is to bend or break them.
Latewire
Something many of the folks don't like to admit on /. is that most of the executives at successful companies put in as many if not more hours than the average worker.
In every successful company I have been employed, the executives almost always were the first ones in in the mornings and the last ones out. They regularly had weekend meetings and multi-day off site meetings, where yes they actually worked. I know because I'm in that tier now and attend these. Granted there is higher compensation at this level, but most of them worked their way to where they are today by being driven and putting in the extra time.
Now before you go flaming me with anecdotes about how so many executives are clueless and got their positions by being family or friends, note that I am referring to what I consider successful companies. I have also seen companies that failed because of the true clueless executive who worked bankers hours and spent most time on the golf course. Those are not the ones I'm referring to.
And interestingly enough, you have average workers that are also not as driven, who seem to regularly complain when others move up and they don't. The question you have to ask yourself is do you feel like working hard either independently or to lift the company as a whole, thus helping yourself, or do you just want a paycheck and nights and weekends free. You can have either, even in technology, but they require different sacrifices and lead to different lifestyles.
If you are working for an organization that regularly expects you to work nights and weekends, look at what the executives are doing. Are they working long hours too? If so, your company may be at one of the various growth points companies hit that take major efforts to break through.
Usually they aren't making quite enough money to afford hiring more staff, but they have the potential for more revenue that will then kick them into the next level where they can grow, but to get there they have to work current staff harder. Those layers vary, but I've seen they generally hit at the $100mm, $1b, $10b and $25b marks. Hopefully when they break the barrier and now get into a new growth spurt, there are new opportunities for the hard workers, higher salaries and potentially bonuses.
However, if the execs aren't putting in heavy hours but expecting you too, then they may just be looking for a quick payout and are keeping labor costs down by not hiring additional staff. That is when you need to start looking.
And I know some folks will say that even working hard, the executives may still be looking for a payout. If the company does breach one of the barrier's they are often a more appealing target for a buyout or merger, which could impact you. Keep in mind, however, very few driven executives actually retire after these events. They tend to go on to a new endeavor and when they realize they need help, they remember names of folks that were hard workers.
Speaking very generally, these value barriers also coincide with the skillset of the executives. You have those great at creating ideas and founding companies, who are just horrible at running large businesses. You have those who are great with Wall Street and large organizations who can't start a business. Same as tech skill levels. So what often happens is the early visionaries or founders, if they are smart, relinquish control to others more qualified and then move on. And it is these folks that might call you to join their newest idea.
No, this will force IT management to be more efficient. Human resources are the most precious of resources. For too long, IT management has resorted to forcing workers to work longer to compensate for poor IT decisions. I'm reminded of why the Egyptians didn't use the steam engine when they invented it; slave labor was cheaper and more adaptable.
This sort of technique get used in agribusiness; a choice between investing in better productivity tools vs. hiring migrant farm workers. I recently was in Kauai where the Kauai coffee plantation invested in productivity methods to compensate for the rising cost of labor. Only when it's more painful not to adapt will IT management adapt.
Best regards.
Something many of the folks don't like to admit on /. is that most of the executives at successful companies put in as many if not more hours than the average worker.
But I didn't imply otherwise. My point isn't that executives don't deserve to be well-compensated, or that they don't put in the hours their subordinates do, but rather that the level of compensation has reached ridiculous levels.
How much should the CEO of a Fortune 500 company make? It's a difficult job. Not everyone can do it.
I think a fair salary for the CEO of a successful corporation should be several million. Let's be nice and generous, and say $10 million a year, with incentive bonuses. I think that adequately compensates someone who's working 80 hours a week.
But $20 million a year? $30 million a year? Do you really think anyone is worth that? Especially in companies who refuse to pay overtime, or fire people to reduce payroll?
This incredible disparity in salaries is new, a result of spineless directors and grasping executives. It's not necessary; the jobs are hard but not impossible, and for every CEO who makes $30 million a year, I guarantee you there are plenty of equally qualified people who would be content with a third of that.
Perhaps if you had actually driven a bus for a while, you might not say that. I worked my way through school as a bus drive in Seattle. I loved driving a bus. My quality of life was better driving a bus than working in IT/tech.
I am considering leaving the IT/tech field and moving back to Seattle and getting another bus driving job with Metro.
Again, quality of life.
FYI, the city of Seattle has the highest educated bus driving workforce in the country. Many students work their way through a degree at the UW by driving a bus. When they graduate they often realize that finding work in their field doesn't pay as much as driving a bus. Top scale is $25 or so, and overtime is paid time and a half. Next time you work a 60 hour week, think about the fact that bus drives are getting paid the same if they work that much. With a degree, bus drivers can move into management, which pays more.
And there's that quality of life thing again. If you don't want the overtime, if you want to do something with your free time, like flip houses, you have that choice. (I knew two bus drivers who owned apartment building together.) In IT/tech, you're forced to work 50-60 hour weeks.
I blame my generation (baby boomers) for the expectation of 50-60 hour weeks in IT. Screw that.
Best regards.
That's great to a point--I'm also a contractor and prefer it for precisely the same reasons.
HOWEVER, there are circumstances of our current economy that make it simply not an option for many people. Namely, if you have any sort of medical condition, especially of the chronic and/or cardiac variety, and you don't want to die an early death or live in poverty conditions despite making $100k+ per year, getting individual or small group health insurance is a near impossibility and you're pretty much forced to work for a company with decent large group coverage.
Despite the FUD about "HillaryCare," it is essentially just attacking the primary root problem of that: eligibility. For most of the population, it's not a monetary entitlement, it's just an eligibility entitlement. Essentially, the entire country is the "group" and you are entitled membership in that group, which is as it should be. You still pay for it, sometimes through the nose, but at least you can GET IT.
Should that go through and that major risk is effectively removed, I imagine you'll find a lot more people leaving the ranks of th W2's into the promised land of independent contracting.
Seriously though, you point out that 'in this day and age' there is no loyalty on either side. I'd say that's partially a reflection of the unwillingness of workers to ask for (demand?) what they're worth. Labor is a business transaction, you shouldn't hate your business partners or let them treat you 'unfairly'. Get a good idea if what you should be paid, ask for it, and leave if you don't get it.
You know where workers are getting it from? They just look at the executives of the companies and see them getting paid BIG bucks - way more than they probably should. And see them stealing peoples money (Enron, Worldcom etc...) and bascially getting away with it. How many executives are doing it and NOT getting caught? Probably A lot more than you think! So if the executives are doing it why shouldn't the employees - think about it. You have the RIAA/MPAA stealing from "artists" and US the people who actually buy their crap!
Think about it we have a double standard. The big rich executives get paid WAY too much steal from others and it's ok. But it's not ok for use to get paid well for our hard work and it's not ok for us to steal from them. Companies would rather outsource to some other country whos workers are willing to work for dimes on the dollar than to pay people decently. To me let those FUCKING companies move their business overseas, take the jobs with them and then let the rest of the U.S. QUIT using their products and services. Some other company will just come up and take their place. Maybe learning from the previous companies mistakes.
If the cost of living in the U.S. wasn't so high I bet people wouldn't need such higher salaries. What is the cost of living in India? A LOT lower than it is here, hence they can get away with needing less pay. Corporations don't get this AT ALL. If they would help bring the cost of living DOWN in the U.S. I would bet people would be willing to work for less. how can we compete in a "GLobal Economy" if everywhere companies are sending jobs has far lower costs of living than we do.
But I think corporate EXECUTIVES need to get a pay cut! NO! they would rather "lay off" hundreds or thousands of employees just so they can keep their cushy job, getting paid millions of dollars and getting millions of dollars in stock options. That's utter CRAP! They say "oh we need to pay them well to keep them." BULLSHIT! If you get rid of one executive there is ALWAYS another wiating in line for his job! MBA's are a DIME A FUCKING DOZEN! Engineers are NOT! If anything Engineers and scientist should be making more than MBA exeuctives!
The Truth is a Virus!!!
I do believe they make standing desks nowadays if you want a more permanent solution.
Bullish Machine Tzar
I'd like to add an item to your otherwise fine list:
Having such an esoteric skill can mean making even more money because people having such a skill are very difficult to find, and can improve your overall retention as you can be difficult to replace (so long as an organization needs that skill, so don't get pigeonholed by it). Being irreplaceable gives you some advantage in dictating your work-life balance with your employer.
Yaz