What Tech Workers Need To Know About Overtime

onehitwonder writes "The class-action lawsuit that current and former Apple employees have filed against the company raises questions about what kinds of workers are covered by the Fair Labor Standards Act (FLSA) — and thus, what kinds of workers are eligible for overtime pay. Some tech workers are covered under it; some are not though perhaps they should be. The lawyer who got IBM workers a $65M settlement from Big Blue for violating labor laws explains why employers often deny tech workers overtime pay and the circumstances under which certain tech workers may or may not be covered under the FLSA. From the article: 'It's not uncommon for employers to err on the side of classifying employees as exempt [from the FLSA], says Sagafi... In fact, the dirty little secret among employers and HR departments is that classifying employees as exempt — even if it means breaking the law — is in their best interest[,] provided... that they don't get caught... "In a sense, they may see it as economically viable for them to skirt the law and wait to see if they get sued because the exposure is not that huge [if they don't get sued]," Sagafi says. "If they can settle [a complaint] for less than 100 percent of what they owe people [for overtime], they've gotten away with a good deal."'"

One solution

Some government entities I know have simplified the exempt issue: only managers can be classified as exempt. All non-managers go by the clock. This removes most ambiguities and abuses. General labor law may also want to consider this (except in rare and well-documented circumstances).

Re:One solution

Gotta love people who think that what they'd like is what everyone else wants. I prefer being salaried; I hate having to deal with time-cards and I hate being told I can't do something (ie: work 80 hours this week then work 20 the next). I like not having to deal with an ever changing income flow depending on how much overtime I took that particular month.

If I thought I was being paid too little then I'd talk to my manager and/or find another job. If I thought I was working too long I'd talk to my manager and/or find another job. And before you ask I can do this because I'm not an idiot and I put saving for a rainy day above everything else.

Re:One solution

I wish I didn't have to deal with time sheets. Even when we were exempt, we had to fill them out for billing purposes (large contractor at a local government). I often long for the days when I don't have to fill one out, not so much because of the tracking but because our time sheet application works about as well as one would expect from Microsoft web application development principles of 1998.

In retrospect, our reaction when HR notified us that we were (mostly) being changed from exempt to hourly was not what one might expect. There was much indignation because for many, reaching exempt status in IT is a sort of badge of honor, a sign that one has made it out of the trenches. We felt like we were being downgraded.

Up until that point, we'd worked whatever was required to get the job done, and if that meant an hour or two (or sometimes three or more) over, then we usually did it. It generally wasn't from any pressure from management. It was just easier for us to get it done that night than to have to pick up again in the morning, when it would compete with whatever else was going on.

When we were changed to hourly, though, we got ominous warnings about overtime and how it was going to be strictly limited and subject to pre-approval and unauthorized overtime was grounds for disciplinary measures up to and including termination. Suddenly, the ability to go home with a clean checklist was in serious danger. However, reality hit management soon after, OT was regularly approved (and almost never actually required pre-approval), and our paychecks...

Well, let's just say that no matter how disappointed we were, the difference between a 60-hour paycheck and a 40-hour paycheck, especially under California overtime laws, was more than enough to chase away our depression. :)

Re:One solution

Seems to me that litigation is pretty lousy substitute for negotiating skills.

But isn't it so that the "negotiations" have already been done, and the result was made into laws and indsutry-wide agreements. Now Apple is breaking the agreements (or at least somebody believes they are, if they are going to court over it), and therefore litigation is the way to go.

If one side wants to change the laws and wants the old agreements discarded, then it's their responsibility to initiate the negotiation/lobbying/bribing process to make it happen. Until then, stick to the law or face litigation.

Re:One solution

Seems to me that litigation is pretty lousy substitute for negotiating skills.

So you're saying that Apple should be allowed to break the law? These laws are supposed to apply to everyone, and if you're claiming that it should be ethically okay for Apple to break the law as long as it doesn't get caught, you're giving Apple an unfair advantage over its competitors who go to greater lengths to pay their employees properly because they know they're legally required to.

If Apple doesn't like the law they should convince people and lawmakers that it should be changed. Until then they should follow it as far as I'm concerned. I'm often skeptical about the excessive use of litigation to solve problems, but in this case I think it makes sense, particularly if Apple is clearly and intentionally breaking the law at the expense of people who aren't.

Re:One solution

All non-managers go by the clock.

Screw that. I don't want overtime. I'm a contract software engineer and I always request to be exempt from overtime. Overtime is a curse.

I want to be able to work when I want to. I want to be able to work 12 hours today and 4 hours tomorrow. I want to be able to work 60 hours this week and 20 hours next week. My boss generally wants exactly the same thing. Flexibility benefits us both. In return for providing that flexibility, I get paid more every hour of every day than other employees.

If I am paid overtime, I will most likely be restricted in my ability to adjust my hours to the work load and to my own schedule. This harms both myself and my employer, and dilutes the value that I bring as a contract employee. Ultimately I get paid less, not more.

Broadly speaking, highly trained, highly valued professionals are in a sellers market and have no need for overtime. Purely commoditized and unskilled labor are the ones who need overtime laws to protect themselves.

Martin

Re:One solution

Is there an actual codified definition of what constitutes a "manager"?

Yes. It'd be better if you RTFA, but since you didn't, all of the following must be true:

1. The employee makes at least $455 per week.
2. The employee's primary job must be managing the business or a divison of the business.
3. The employee supervises at least two or more other full-time employees.
4. The employee has authority to hire or fire other employees.

Re:One solution

4. The employee has authority to hire or fire other employees.

"hire or fire" or "hire and fire" - there is a big difference.

From my observations, at most of my clients, any one "supervisor" or above can fire some one below them, but hiring requires approvals at every level up to the "vice president" level, any of which can veto the hiring decision.

Re:One solution

Exactly. Even a VP usually can't hire or fire someone without HR approving the decision.

But what if he wants to fire HR ... ?

Re:One solution

The solution is actually just two words.

Punitive Damages

And they have to be really punitive. They have to be high enough that Apple shareholders eyes bleed. Businesses of this size almost always act in a manner to forward their best interest without consideration of morals.

All Apple have done is what any large business will do when there is a law. If the PR implications and the impact on employee moral plus the risk of a court case times the cost of it are less than the cost of sticking to the law, they break the law. The only two variables we can change are how often they go to court and how much is extracted when they get there.

Everything else is just loopholes.

FLSA or not, you get paid what you're worth

FLSA or not, you get paid what you're worth. If not, then you move on. A strongly competitive market ensures that people will be able to find a new job. As long as they can do that, employers will have to pay an employee what they're worth if they want to keep them.

Caveat Employee

Usually one of the first questions I bring up upon being accepted for a position involves comp-time/overtime. Then I get it in writing.

They can (and often do) quote policy at length, but you can (and should) negotiate changes more to your liking. But unless the job is an entry-level/helpdesk position, or the market really, really sucks? Never trust an employer to look out for your best interests... that's supposed to be your job, eh?

/P

FPMITA Is the solution

""If they can settle [a complaint] for less than 100 percent of what they owe people [for overtime], they've gotten away with a good deal."'"

This is why when the DA can prove that there was a conspiracy to carry out just such a policy, then they should be sent to a Federal Pound Me In The Ass Prison. I realize that there may not be any laws yet to cover this, but there should be.

This reminds me of the Fight Club when Ed Norton's character is explaining to the woman on the plane that if the total legal liability is less than the cost of recalling all the defective cars, a recall is not issued. There is just no other way to say it... that is some nefarious heinous shit. If laws are really meant to protect and nurture society then this is EXACTLY the kind of crap that needs to be stopped.

Re:FPMITA Is the solution

Partially, yes. But I'm also partially serious. We're talking about a law that requires companies to pay over time to employees when neither the employee or the company want that.

For instance, I currently work a salaried position in IT which is exempt from over-time. I enjoy the benefits of that position. I can come in a little late. I usually stroll in around 9AM and leave around 5PM. I usually take a 1.5 hour lunch. No one cares because they all see the next day that I also worked from home that evening for about 3 or 4 hours. I enjoy my work enough to work more than 8 hours a day, but in a cubicle farm, I get interrupted so much that I can get more work done at home in the evenings. I participate in an on-call rotation, but even when I'm not on-call, I often times take notice of emergencies and hop online and help out my co-workers with on-call issues. I have no wife or children, am generally anti-social, so I sit at home and work. And I enjoy it.

Enter the law about over time. What happens when these law suits become all the rage and my employer decides that, even though my position doesn't appear to be affected by this law, they make it hourly anyway? Now, I've lost my flex time, have to punch a time card, and must be at work from 8AM to 5PM with a strict 12PM - 1PM lunch. At the very least, I will be unhappy enough that I will no longer work more than 8 hours a day. I will perform worse during the 8 hours that I am there. Sooner than later, I'll probably leave for greener pastures. This is now a negative for both me, my team, and my employer and it's all because someone else somewhere else that has no relationship to me what-so-ever opened his mouth and bitched and complained.

We've got to stop this kind of non-sense. Let me live my life the way I want to live my life for fuck's sake! I'm tired of people bitching about every little thing, going on to spawn new laws that destroy my lifestyle, and then proceeding to bitch about even more shit! We have to stop catering to these people who want life handed to them on a silver platter. It only makes all of us suffer. They need to take initiative to make their lives better through action rather than using a flawed legal system to their advantage. When companies do this, these same bitchers raise holy hell and cry foul. When they do it, it's a self-righteous holy war that is destructive to everyone around them.

This kind of behavior attempts to normalize the work environment for our entire nation. In the end, all this senseless bitching will do is end us all up in a THX 1138 world. That is what a normalized world would look like and whether they know it or not, that's what they're trying to achieve. They decide it's too much work to stand on their own, so they attempt to pull down those who can by constant complaining.

A previous poster had it right. This is people doing this to people, not the companies doing this to people. The companies are just adapting to the crap the people are throwing at them.

A dig at the free market and capitalism.

Now I'm going to use this to take a dig at the free market and capitalism. This is why pure capitalism doesn't work. Companies don't try to "compete", they will lie, cheat, steal and break the law just to make a buck. That's because people will lie, cheat and steal to make a buck. Which is of course why communism doesn't work either. Because of people. And the company will keep selling the products because this makes them cheap. And people will keep buying them because they don't care about whoever is getting cheated.

Remember, it's not the company doing this to people, it's just people doing it to people. In the end that's all it is.

Crazy idea.

How about an employee and an employer agree to an amount of pay, a schema for that pay be it salary or hourly, and a set of duties. Then if either side decides at a later point the agreement is no longer suitable, the relationship can be severed.

Crazy shit, I know.

Re:Crazy idea.

How about an employee and an employer agree

That's quite an unequal bargaining table, stacked substantially in favor of the employer.

Laissez Faire capitalism was tried and failed in the US nearly a decade ago, precisely because the individual has such minuscule bargaining power compared to a large company.

It wasn't the free-market and contract law that ended sweatshops in the developed world.

California law applies too

Also bear in mind that, for the IT field, California has additional laws about who's overtime-exempt and who's not based on, among other things, salary and effective hourly rate. Relevant law is California Labor Code section 515.5 [ca.gov]. As of 2007 the effective hourly rate needed to qualify as overtime-exempt was $49.77/hour. SB 929 [ca.gov] changed that effective 1/1/2008 to $36/hour, or not quite $75K/year in salary. Anyone in the IT field not being paid at least that amount is not exempt from overtime in California regardless of other qualifications (the exemption requires that all conditions hold).

I don't get overtime

I really don't get overtime for programmers. Well, perhaps if you need to ship in a few days and aren't quite finished yet, so you work overtime for a few days. That could work.

But constant overtime? It just doesn't work.

If you're building a wall and putting one brick on another, you're probably going to do about twice as much work in twice the time. This does not apply to programming. I've noticed that I have about 4 to 6 hours of programming in me each day. Some days it's more; perhaps up to 10 hours. But most days, it's around 4 to 6 hours.

After I've run out of "programmming" time, I have to stop programming, because if I continue to write code, I'll have to spend time rewriting it the next day. I simply start writing crap code after about 4 to 6 hours of writing code. I can't properly concentrate on writing code anymore, I guess. Once I reach this point, I typically start doing administrativa, replying to mails, answering support calls, writing documentation and such. Or I just go home (happily, I can do that at my current work place; as long as my output is good, I don't need to put in the time).

In my experience, most programmers work the same way. Nobody codes well for 10 hours a day, each day.

This gets us to overtime. If you force people to continue writing code after their natural code writing limit is exhausted, they will write crap. And they will have to refactor that crap. So in effect, forcing programmers to work overtime will slow down your project, because they'll start spending more and more time fixing broken code instead of writing good fresh code.

Article should be titled "What *US* Tech Workers"

Article should be titled "What *US* Tech Workers Need to Know About Overtime".

Very few stories on here are US-specific, and they should be labelled as such.

Re:Wow..

One could take the libertarian view that says, "if you don't like the work conditions, go elsewhere". Of course, during recessions that's often not a viable choice.

But libertarians tend to be social darwinists in that regard: "let the harsh markets weed out the weak". However, it may lead to the "ugly capitalism" found in 1800's Britain that inspired tons of novels and discourses bashing capitalism.

These issues are still not settled in the US: the progressives and conservatives (semi-libertarians[1]) fight over these views endlessly.

(It's ironic how conservatives tend to reject darwinism in biology, but embrace it in economics and distribution.)

[1] Conservatives tend to be economic libertarians but regulation-oriented when it comes to sex. This is the main thing that distinguishes them from libertarians in my opinion.
         

Re:All they need to know: "india"

I once saw a cartoon where the boss simply put up a big India national flag behind his desk. Nobody bothered to ask for raises.
     

Re:These are IT people

The suit is being filed by a Network Engineer. These are the guys who keep the local infrastructure running - its tough to outsource that kind of thing to India.

Just have an Indian support professional walk any secretary though any network maintenance procedures over IP phone. Easy! Efficient! Almost free! Then you can "let go" a few better paid network professionals, and hire an extra secretary or two (at minimun pay of course) to be the hands and eyes of the Indian network professionals. Guaranteed to save you big bucks on the long run!

And remember, young female secretaries in skirts reaching up to change some cable is a much more aesthetic view, than a slightly overweight, bearded male engineer doing the same, Even assuming he doesn't wear a skirt... (Just try not get a mental image of him doing it in a skir...AAaaieee

Re:not getting caught

OH! I get it! like the horrible economic reality that its in my best interests to steal cars as long as I don't get caught

It would only be like that, if the punishment for stealing a car was less than the purchase price of that car.

Re:not getting caught

Well, depending on your local laws and criminal penalties, your connections to the people already working in the car-stealing industry, and your current wealth and income, it may actually be in your best financial interests to start stealing cars until you get caught...

I hear fuel-efficient cars are in pretty high demand (compared to the supply) in some parts of the USA right now, so I think stealing those is a growing "business". Get in now, while it's a new trend!

Or not, if you don't like the idea of being a crook.