Overtime for Exempt Employees?!?

[Da Nag]

To further add to the confusion, there are three categories under which an employer can claim an employee exempt - Executive, Administrative and Professional. Administrative and Professional are the two categories that are most abused by employers.

There have been several cases where folks in the IT industry have sued and won. Most in this industry are classified as exempt under the Professional category, regardless of title or responsibility. Those that have won, have shown that while their skills are indeed specialized, their work frequently consists of repeated, documented procedures - particularly when called after hours for failed systems.

As such, it has been held that they do not meet the criteria laid out for the Professional exemption. That is, they are not working independently using analytical skills specific to a particular problem. Instead, they are following a checklist, often escalating to others once all steps have been followed.

This is often the case with first/second level IT support staff, who are typically the ones carrying the cell phones/pagers after hours, and being forced to be on standby with no pay due to their exempt status. It's also one of the arguments being made in the current class action lawsuit against Apple.

 

[FUEGO]

To further add to the confusion, there are three categories under which an employer can claim an employee exempt - Executive, Administrative and Professional. Administrative and Professional are the two categories that are most abused by employers.

There have been several cases where folks in the IT industry...

In my research I noticed there is now another category for "IT Professional" or something to that effect that has additional guidelines a bit different from the regular "Professional" category.

 

[Bimmerbill]

I'm a fed employee and exempt from FLSA laws. I can't work over 40 hours without prior approval from management. Since we are broke, I've only been offered comp time, never over time. Fed law limits OT pay, so my OT pay is the same as my straight pay.

 

[Da Nag]

In my research I noticed there is now another category for "IT Professional" or something to that effect that has additional guidelines a bit different from the regular "Professional" category.

I'm not certain, but I think that's a state thing. California has laws specific to the IT industry, but what they are and how they take precedence (or not) over federal law, is probably best left to somebody who knows what they are talking about...and that wouldn't be me.

 

[Finance Dave]

That is a fairly common scenario in the Chicago-land area Dave.

BTW..... if you want to make this discussion really confusing, try mixing the concept of exempt and non-exempt compensation status with the concept of direct and indirect labor expenses. Many assume exempt = indirect and non-exempt = direct. But, of course, this isn't always true.

This discussion is way, way too much like w*ork. It's Thursday morning and DW and I are leaving for three days of kayaking in northern Wisconsin in a few minutes. There will be no pay for this, straight or overtime, exempt or non-exempt, direct or indirect. But there will be great benefits!

thanks. Not confusing to me to mix with direct vs. indirect...I did product costing work for 3 years.

And excuse my naivite (sp?), but DW = _____ wife?

 

[SecondCor521]

DW usually is Dear Wife.

2Cor521

 

[FUEGO]

Here's a little follow up note: After emailing the speaker, he called me this morning to clarify what he was saying about paying for overtime.

Apparently, case law (state and federal) and state laws are where you see payment required for imposed overtime for salaried workers. He mentioned a particular case in NY and mentioned CA more generally. So it may very well vary greatly from state to state. He said in NY the case at issue turned on the definition of what is salary. Work required beyond that which is contemplated by "salary" is overtime. For example, construction administration on a Saturday that is outside of the 9-5 work week would require paid overtime, even for salaried personnel. Even if the person was a higher level professional/manager doing CA. I suppose if their job description called for flex time, nights, and weekend work (adding to 40 hours), overtime would not be required.

At some point, I'll need to look at my state's specific laws and case law.

 

[Independent]

Same here. We have a paper sign in, sign out sheet. We also have a computer timesheet that we have to log into, saying how many hours we worked each day. It has to add up to exactly 80 for each two week time period, and if it is less then our annual leave (vacation) time is applied. Our timekeeper reconciles the paper sign in sheet with the computer. The same is true for management.

I haven't seen a response to this post yet. I'm not a lawyer, so I hate to comment, but this one seems pretty plain. If I were in this position, and didn't like the situation, I think I'd talk to a few co-workers and see if we couldn't pool enough money to hire an attorney.

 

[Rustward]

I haven't seen a response to this post yet. I'm not a lawyer, so I hate to comment, but this one seems pretty plain. If I were in this position, and didn't like the situation, I think I'd talk to a few co-workers and see if we couldn't pool enough money to hire an attorney.

We can wait for Want2 to respond, but my gut feel is that she is content with the status-quo, with 16 months and 1 week to go, if I remember correctly.

 

[laurence]

To further add to the confusion, there are three categories under which an employer can claim an employee exempt - Executive, Administrative and Professional. Administrative and Professional are the two categories that are most abused by employers.

There have been several cases where folks in the IT industry have sued and won. Most in this industry are classified as exempt under the Professional category, regardless of title or responsibility. Those that have won, have shown that while their skills are indeed specialized, their work frequently consists of repeated, documented procedures - particularly when called after hours for failed systems.

As such, it has been held that they do not meet the criteria laid out for the Professional exemption. That is, they are not working independently using analytical skills specific to a particular problem. Instead, they are following a checklist, often escalating to others once all steps have been followed.

This is often the case with first/second level IT support staff, who are typically the ones carrying the cell phones/pagers after hours, and being forced to be on standby with no pay due to their exempt status. It's also one of the arguments being made in the current class action lawsuit against Apple.

I worked for CSC in California in the IT field and experienced this first hand. We were "exempt" but then they sent out a company wide email that we were all required to work 44 hours a week from now on to help them sponser their losing Tour de France team or something. Long story short 5 years and a class action suit later we got about $3k back each and the lawyers got ~$20 mill.

 

[W2R]

We can wait for Want2 to respond, but my gut feel is that she is content with the status-quo, with 16 months and 1 week to go, if I remember correctly.

Yes - - with 443 days to go, the idea of hiring a lawyer at my own expense to sue the Federal Government over a few minutes, this in order to meet somebody else's preconceptions, doesn't exactly ring my bells, strangely enough....

 

[Alan]

There have been a number of times when my company has required exempt employees to work overtime to meet a deadline. We are currently is such a situation. Most are non-exempt but several are exempt. What has always happened over the almost 30 years I've worked for them is that shortly after the conclusion of the project they will pay very nice bonuses to those that have sacrificed, including those that were paid overtime since they recognize that they too have made significant sacrifices. The exempt employees will get much larger bonuses of course.

I was not aware of any legal requirement to pay exempt employees for overtime they are required to work by the company.

 

[Martha]

FYI, there are some special rules regarding overtime for federal and state government employees. These rules make it pretty easy for the government to designate employees as exempt. So, W2R, you are probably SOL.

 

[W2R]

FYI, there are some special rules regarding overtime for federal and state government employees. These rules make it pretty easy for the government to designate employees as exempt. So, W2R, you are probably SOL.

Exactly - - we are exempt, and yet we are still required to sign in. But a lot of people think we don't have to, and that's what I meant by his preconception. As far as I have been able to discern, my situation is the norm for federal scientists and engineers (and lawyers, none of whom I have known to sue about it). For whatever reasons, many people think we have a much more "cush job" than we have.

Not that it's not "cush"!! Just not THAT sweet.

 

[growing_older]

We have a paper sign in, sign out sheet. We also have a computer timesheet that we have to log into, saying how many hours we worked each day. It has to add up to exactly 80 for each two week time period

I've worked at several places that had systems like this. I always tallied my hours accurately and invariably they add up to more than 80. If I'm in an exempt position and someone further down the accounting chain wants to "correct" my entries to total exactly 80, they are welcome to do so. Or, I want to be told explicitly to falsify records to make them total exactly 80. Curiously no one has ever done so.

 

[mathjak107]

heres the scoop... the new gold mine for the ole ambulance chasers and medical malpractice attorneys is the wage hour laws. my son is an attorney who represents only employers and his specialty is now wage hour laws. they are busier than ever.,

the first issue is any complaint that comes in from anyone automatically opens a class action suit. many positions classified as exempt by ones company really arent when brought before the courts.

heres the money maker. since companies dont break out a supposed employees weekly check into so many hours straight time and so many hours overtime then any audit by a pending suit pulls these employees records out for the court to decide. now your weekly amount may very well be the same fixed amount but by the company not breaking them out if the case goes to court then that can be big trouble if your job is found not really exempt

99% of all cases are settled by employers out of court as they dont want to risk going to court and having to pay the overtime, hefty fines and penaltys and the lawyer for the complaintants. its a slam dunk for the lawyers representing employees as no attorney ever wants to have his client go before the court its to risky...

also employer insurance dosnt cover any settlements or the other sides legal expenses , if you have legal insurance it will only cover your defence as its considered breaking the law if you loose in court.

its extremely difficult to predict how the court will percieve certain jobs considered exempt by employers. usually its not black and white just different shades of gray in court and only black and white in the employers mind.

 

[mathjak107]

also if theres a pending class action suit brought its brought for all employees working more than 40 hours. even you cant say that your pay is correct for the 40 plus hours as its what you agreed to, its akin to you saying you agreed to work for less than minimum wage in the eyes of the labor laws. you must be part of the suit if your not clearly an exempt employee ,you have no choice.....

technically im considered an exempt employee in my company because im in sales and make decisions but the decisions i make are pricing decisions and according to my son that may not be good enough in court so he advised me to tell my employer to breakout my check showing straight time and overtime even though it all adds up to the same amount

 

[Buckeye]

My employer actually pays me so much and treats me so well that I don't mind putting in the overtime when required which so far has always been by my decision (although significant). I'm still probably going to resign in the next 6 months because I'm tired of the routine (my own mental problem) and DH wants to go back to FL (where I will get paid in sunshine). Boredom is a dangerous thing!

 

[Brat]

How much an employee is to be paid is impacted by Fed & State law (sometimes even local ordinance in CA) and the employment agreement.

I have asked my former DOL Wage Hour colleagues to chime in. I can't because took a bad fall, after care from a hand surgeon I am sporting a cast on my dominant hand from my fingers to my elbow - typing is tedious.

 

[Martha]

Sorry about the fall! And the typing hand no less. Take care, Brat.

 

[FreeAtLast]

I ran a small computer consulting business for almost 20 years and I paid my employees straight time when they had to work past 40 hours. I also paid them for 1 hour for each 4 hours they were on call. This was times that they were required to carry a cell phone or beeper for company business on their personal time.

 

[mathjak107]

boy would one of those attorneys love your payroll records ha ha .... ka ching!

 

[mathjak107]

My employer actually pays me so much and treats me so well that I don't mind putting in the overtime when required which so far has always been by my decision (although significant). I'm still probably going to resign in the next 6 months because I'm tired of the routine (my own mental problem) and DH wants to go back to FL (where I will get paid in sunshine). Boredom is a dangerous thing!

its not a question of being happy with the wage vs hours you are paid for. the problem iss really how your company breakes out the compensation on their payroll records that makes them an open piggy bank when a disgruntled employee opens a case. they must show your compensation broken down into straight time and overtime even if it still comes up to the same amount.

without these records if your position is questionable as to exempt status then as far as the law goes they didnt pay you overtime and are screwed.


thats what makes this so lucrative, in my sons firm they have yet to go ooooh man are we in a great position for this case... nope its always whats it going to cost to settle without court. theres no such defense as ,yes im fairly compensated for my 40 plus hours and am getting what im supposed to.

if payroll records dont show the overtime broken out bingo they got ya

 

[mathjak107]

toooo funny for the first time i saw a cable advertisement last night which was for a law firm that wants employees who think they may have been stiffed on overtime.

more and more these will replace the ole if you were injured ads

 

[mathjak107]

asked my son about partial days taken as an exempt employee as well as the origional question about whether it matters if over time is ordered by an employer vs just saying heres the project its due monday...


there are 2 aspects covered under wage hour laws, one is federal laws the other state laws..

here in new york state the law is such that vacation time or sick days is not something an employer has to give. if your an expempt employee and you take 1/2 a day the employer is allowed to go into the bank of vacation or sick time you have and deduct the time but your paid your wage for the full week..

if you have no days left and take 1/2 a day then they must pay your weekly wage in full. they cant dock you....truth is you may get away doing that once or twice but it will get you fired eventually,

most companies my son coaches are told always to just tell their exempt employees that theres a project due on such and such a date, jkust get it done. no mention of overtime,or hours you must work. or must work saturday say 9:00 to 12..

exempt employees can not be given firm hours of which they must work... but again if you veer you will be fired....