What Tech Workers Need To Know About Overtime 418
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."'"
not getting caught (Score:3, Interesting)
Wow.. (Score:2, Interesting)
When I was salaried, if I worked overtime, I took time off in lieu.
I also documented my time and funny enough, at the end of the year I was within a couple hours.
I hate day jobs.. much more fun being self-employed.
FPMITA Is the solution (Score:5, Interesting)
""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 (Score:3, Interesting)
Reminds me of a guy that I used to work with.
We worked in downtown Tokyo, he insisted on driving. (We all used public transport.) Except he didn't have a parking space, so he parked right in front of the building, on the street, illegally, every day. I asked him once how he avoids parking tickets. He said he didn't bother too much.
"Parking space costs about US$500 a month here. A parking ticket costs about US$100. They come around on the average three times a month to issue tickets. I actually only get about 1 per month, because I know they come between 11:00AM to 1:00PM on Tuesdays only. It's both convenient and economically viable to do things that way!"
He had a point...
Read for yourself... (Score:3, Interesting)
The FLSA is actually pretty clear and easy to follow: http://finduslaw.com/fair_labor_standards_act_flsa_29_u_s_code_chapter_8#2 [finduslaw.com]
It is not hard to determine whether or not your own role qualifies as exempt or non-exempt. Where it gets interesting is if you have seasonal duties, such as being a software developer for part of the year (which would be exempt from overtime pay) and then providing technical support for that software during a different part of the year (which would be non-exempt, or due overtime pay). A good example might be developers at Turbo Tax that code in the fall and do tax software support during the spring (which is tax season in the United States). If more than 20% of your work during the year is non-exempt then your employer cannot classify you as exempt and you must be paid for all overtime as if you were non-exempt year round.
Re:One solution (Score:1, Interesting)
From what I understand a manager is someone who has employees that report directly to them.
In an unrelated note on my own experiences.... At the small non-profit which I work at, they started off with only managers (typically directors and above) being exempt. In the past year some departments within the company have moved to having all of their employees exempt. Some of our departments exist because of government contracts, so I guess it makes things easier from a budget perspective to have fixed costs for each employee. But on the other hand, when I see this excess amount of money they have at the end of the fiscal year, I think about how they should give low-level employees a bonus for working overtime (or better yet, keep them at non-exempt!) rather than buying miscellaneous crap because they "need to spend the money".
I am in the IT department at the company, so I am fortunate to not be exempt yet. This is nice because there are times where I have to work until midnight, or come in for 6 hours on the weekend to do planned or (eek) unplanned maintenance. To work all this time knowing I am not making overtime will anger me. So it all comes down to this: The day they make me exempt - which I know is coming soon - what are they going to give ME at the expense of me sacrificing my extra time to help the company? Probably nothing more than what I make now. I just have this crazy and unrealistic idea that if you are exempt then you deserve more money, perks, etc. compared to someone who performs the same job functions in a non-exempt role.
Maybe someone else can chime in on their experiences of transferring from a non-exempt to exempt position in their workplace?
Re:One solution (Score:5, Interesting)
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:Wow.. (Score:2, Interesting)
I've always thought that Communism was actually a trick. It was described as socialism, i.e. moving power from bosses to workers, but actually it was about rolling back progress in workers rights.
E.g. in the Soviet Union it essentially ended up essentially reinstating Serfdom
http://en.wikipedia.org/wiki/Serfdom#The_Alleged_Return_of_Serfdom [wikipedia.org]
Some economic and political thinkers have argued that centrally-planned economies, especially the Soviet collective farm system and other systems based on Soviet-style Communist economics, amount to a return to government-owned serfdom. This view was put most powerfully by Friedrich Hayek in The Road to Serfdom as early as 1944 and has since been adopted by others including Mikhael Gorbachev. In certain Communist countries, farmers were tied to their farms, either kolkhoz which were theoretically collectives, or sovkhoz which were state-owned, through a system of internal passports and household registration. They had to plant crops according to instructions from the central authorities, especially if they were on state-run farms. These authorities would then "buy" their agricultural produce at vastly reduced prices and use the surplus to invest in heavy industry.
This de facto serfdom persisted in Russia till as late as 1974 (with a brief break during the Civil War), when the Soviet Government Decree #667 was put in effect. This decree granted peasants identification documents, with an unrestricted right to move within the country â" thus detaching them from the piece of land where they had worked for generations, for the first time in Russian history.
Re:One solution (Score:3, Interesting)
Problem is... shit like [thechronicleherald.ca]
11 layers of management happens
I've heard the statistic that for every 2 employees that actually worked, 3 managers oversaw them.
Bell (Canada) is a great example of a company that embodies fail in basically everything that they do.
I think the important question to ask is... (Score:3, Interesting)
Why is it that "tech workers" are virtually the only group singled out for getting the shaft on overtime pay.
Sure, other groups have exceptions in state and federal law (truck drivers, fruit pickers, etc), but if you look across the board - virtually all states have sections just for us in the overtime part of the law and no other group gets screwed in such a wide swath of area.
This even extends to Canada.
I left an employer who stiffed me on overtime pay "accidentally" and when I talk to other people in town, the general consensus is their employers "don't pay overtime... and they have lawyers on hand to ensure they don't start paying."
Interesting, no?
Re:One solution (Score:5, Interesting)
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.
CSC got busted. (Score:3, Interesting)
My check was about 1/10th [lieffcabraser.com] of what they legitimately owed me.
Re:One solution (Score:2, Interesting)
Lucky you. Even though they are salaried, no one I know is allowed to work less than 40 hours per week with out it being charged against their vacation balance (or deducted from their paycheck) - no matter how many hours they worked the week before.
That's normally company policy. Everywhere I have worked, managers typically have an unofficial comping system. If people put in a lot of overtime to meet a deadline, they often can take a freebie day or two when things are slow. Likewise, if someone has some personal business to take care of, they can make up the hours another time. The general rule of thumb is "get your shit done on time". That's an advantage to being salaried -- you can add some flexibility to your schedule (if you have a good manager). Hourly workers don't have that so much as it leads to overtime pay. Laws make accounting for hours much more stringent for hourly workers. People should know what they're in for when taking a salaried IT job. Ask during the interview what typical hours are. Take that in to account when the salary is offered.
Re:One solution (Score:3, Interesting)
On a more serious note, I grew up in a mining town. Those guys were paid pretty well considering a lot of them only had a highschool diploma, if that. 60 grand back in the early 90's was pretty good cash, especially when a house could be bought for $40 grand.
Re:These are IT people (Score:3, Interesting)
Never underestimate human/management stupidity.
My ex-employer is currently performing his third outsourcing-experiment for core infrastructure - after the first two (thailand and russia, iirc) failed horribly.
The ratio being (no kidding): "We pay only 1/3 for them, so we can try at least 3 times."
Needless to say the damage done by the first two experiments already ate pretty much all potential savings for the next 5 years...
Re:FPMITA Is the solution (Score:3, Interesting)
So he was being a dick because he could get away with it.
Not much to be proud of.
Hear hear people, I'm being an asshole because nobody is forcing me to be considerate of others.
People like him are the reason we need all these stupid little laws in the first place.
Re:Crazy idea. (Score:3, Interesting)
Except that you don't see this until your paycheck comes in and it's less than what you agreed to and the employer says "quit and sue me!".
So you do and now...
1. you are out of a job
and
2. Now you have to sue a company while looking for a job.
Re:One solution (Score:1, Interesting)
result was made into laws and indsutry-wide agreements.
Now, that is a serious problem in it self. There never should be an industry-wide agreement. Such a monstrosity hampers competition, decreases the flexibility of the (labour and investment) markets and leads to irrational wage policies therefore increasing inflation and creating increasing economic inequality.
The US Deparment of Labour has a clear classification on the required compensations on any possible case concerning Apple's workforce. The overtime exemptions are not limiting the duration of work but are setting the minimum compensation for any required overtime.
Re:Wow.. (Score:3, Interesting)
It depends on where you work, doesn't it? He obviously works somewhere that they value their employees enough to recognize that working overtime is doing them a HUGE favor, and give him time off when he wants it in return.
Overtime work isn't regular work... It's harder, and it's generally an 'emergency' situation that has to be completed on a timeframe. Trading overtime for regular time is a really, really good deal for a company and they should appreciate it.
The company I work for, if you end up working an extra day's worth in a week, they offer to let you take a day off the next week. (Or even that same week, if it works out that way.) Yes, they offer... You don't have to ask. Less than a day's worth, and you generally have to ask if you want the time off another day, but unless the 'emergency' is still on, they answer is usually 'Yes.'
(I put 'emergency' in quotes because there's not really any such thing in a business, but they treat the situation like it is.)
Re:One solution (Score:4, Interesting)
Let's play Devil's Advocate, not for the intent of trolling nor for flaming...
How about if this was a law in China but not here?
Well, I for one think it would be great if China had a law that required workers to be paid for the work they do. But what's so Devil's Advocate about that?
Re:One solution (Score:4, Interesting)
I've always held an exempt job and it's always been for internal IT. And believe it or not, I've still had to submit my time. They call it "project tracking". I call it "lying", but I've never hidden that fact. If they don't give me a bucket to log certain tasks, they'll get lumped in to whatever task I feel like padding that week. I don't really see how they can track projects at the level they want and get any sort of meaningful results.
But the point is, being exempt and not having billable hours, I still have to submit a timesheet. It just doesn't affect my paycheck.
Layne
Re:All they need to know: "india" (Score:3, Interesting)
I'm not sure where you live, but the tech market for software developers seems pretty strong right now.
I've got 6 years experience. I'm writing this from a private office in the Triangle where I'm paid about $85k. I like my job just fine.
Tomorrow evening I'm being flown to Sarasota for an interview for a company who called me and threw-out a 110-120k range.
I started my career as a developer in the immediate aftermath of the .com burst. THAT was a bad market. This is peaches and cream.
Re:A dig at the free market and capitalism. (Score:3, Interesting)
I'm not being sarcastic. People always want to put on rose-colored glasses and talk about all the nice people in the world and the goodness of mankind. You may find this in churches and charities, but honestly, in the business world, dog-eat-dog cutthroat attitudes prevail. You'd be hard-pressed to find someone in a position of power that didn't use some unscrupulous means somewhere along the line to get there.
You are exactly right with your closing statement. People are quick to blame big businesses. Big business doesn't just exist. It is created and sustained. By people.
Re:One solution (Score:4, Interesting)
Agreed. Its really sad how easy we go on corporations.
remember Exxon-Valdeze (sp?)? I was reading that around 20 years after the fact, Exxon-Mobile has been still fighting, and finnaly recently won their case, they wont have to pay a dime in punative damages over the oil spill.
Of course there is an even better solution: institute a review process.
Its been shown time and time again that peoples decisions tend to be based more on the likelyhood of being caught than on the punishment if they do get caught. Take the example of Lo-Jack.
Thats all without increasing the penalties for stealing cars at all, just turning up the likelyhood of getting caught!
SO... clearly companies have been abusing the fact that there is no oversight. Its time to institute oversight.
-Steve
Re:One solution (Score:2, Interesting)
Actually, according to the FLSA (http://www.resource4flsalaw.com/fairlaborstandardsactemployeeclassifications.html )
"The Fair Labor Standards Act provides for a âoeprofessional exemptionâ for such jobs as:
One that requires advanced education or knowledge
Work in an original and creative artistic field
Teaching
Computer systems analyst, programmer, engineer, or similar field
Those who perform work which is intellectual and varied in character, the accomplishment of which cannot be standardized as to time
Those who regularly exercise discretion and judgment
These classifications have frustrated many workers, such as computer and information system workers, who have a great deal of specialized knowledge but no professional training. These changes to the law allow many companies to reclassify these workers as âoeprofessionalsâ and thus not pay them overtime.
Your employer must establish precisely why your position qualifies for a professional exemption through a number of wage and duty tests. Salaried positions are generally immediately exempt from overtime, but other positions must meet specific requirements in order to be exempt. If you believe you were not properly compensated for your work, you may be entitled to take legal action. Contact an experienced labor law attorney today."
As far as the litmus tests an employer needs to go through it does not take a rocket scientist to manipulate that system. So I would say based on this "amendent to clarify the FLSA in 2004" a large number of people were bent over and forced to take it.
Of course posting this tidbit as well as a reference doesnt mean those on /. will read it ;)
Re:Crazy idea. (Score:1, Interesting)
How about if we make sure that the number of employers is equal to the number of employees, so that they have equal negotiating power?
I billed my employeer when I left (Score:3, Interesting)
I worked as a graphic designer at the corporate office for a now defunct Multi-level Marketing company. The family-owned company had become very arrogant. Shortly after I left, they were raided by federal marshals and the FDA who confiscated about half their product line.
They tried to have the best of both worlds when accounting for my time and pay. If I took off early for a doctor's appointment, I had to write up a time card deducting those hours, but if a project required additional hours, it was just part of the job.
I began documenting all the time I spent on work beyond 8 hours after the marketing V.P. complained to my supervisor that I was leaving after an 8-hour day. Shortly after that, the company laid off half the work-force. Two other designers quitting just weeks before was the only reason I survived the layoff.
With the expectation of increased hours growing, I talked with HR. I was told that the labor laws said not completing required work constituted insubordination.
A week after I quit, I mailed them a bill for just under $3,000 in unpaid overtime. I included a short primer on labor laws culled from web research that detailed why I was incorrectly classified as exempt, and that their payroll practices forfeited any claim to my position being exempt.
I knew the company wasn't going to be around much longer, so I felt pretty safe leaving the burned bridge. I didn't want a future prospective employer talking to these clowns. 18 months later, I attended their bankruptcy auction and bought the filing cabinet that contained a few grand in graphic design software.
P.S. They paid the entire amount I billed them. I later heard this wasn't the first time they had been hit by a labor issue claim, and they had been advised that it might get bumped up to class action if someone was allowed to pursue litigation. Personally, I was bluffing. I was gonna let it drop with the letter, but the check was just icing on the cake.
Re:Crazy idea. (Score:3, Interesting)
Indeed. But that's not the same as "an employee and an employer agree[ing]". Perhaps more to the point, though, Unions have practically no foothold in the tech industry right now.