"I work for a small company that's based in California," John explains, "but me and four other guys are currently flying across the country weekly. I was okay with the overtime they initially requested but then it became 50-60 hours per week. We get no overtime because we were told we were exempt.
The issue was that my job was merging into a management position so I kind of accepted it. But not for the others working under me. They're being asked to work 60 hours per week, away from their family and friends.I did some research on laws for software engineers in California, and as it's a relatively new field, there are lots of legal loopholes and exemptions."
While computer professionals across the U.S. are protected by standard federal labor laws, California has crafted its own specific canons, with exemptions becoming more complicated and harder to meet.
At the beginning of the software boom in the 90s, IT employees worked long, well-remunerated hours and earned a straightforward time-and-a-half for overtime. In 2001, the California legislature passed a law that allowed for highly skilled professionals to be classified as exempt--granted they met the narrow guidelines. Those guidelines depended on employees being paid on an hourly basis instead of a salary. Some companies mistakenly believed that if they paid a salary that could be equally divided to mirror the required hourly rate, they were within the law. But if an employee clocked in even one hour over the 40 hour limit, it upset the precarious balance of calculations, resulting in owed overtime.
By 2006, a computer professional could be paid a salary and be ruled exempt as long as the averaged-out wages never dropped below the minimum wage threshold of $47.81 per hour. In 2007 that marker jumped to $49.77. Up to this point, the large majority of programmers were virtually guaranteed the right to overtime pay.
As of January 1st, however, that hourly rate was reduced to $36.00, snatching overtime pay out of the reach for far more IT specialists. This applies to work started in 2008 but overtime may be recovered on wages dating back four years.
"A lawyer confirmed to me that I was supposed to get overtime," John says. "But when I told this to my employer, they still insisted I was exempt. I showed them the printout from the lawyer but it turned out that my four guys are eligible, but not me."
Although John earned less than $40.00 per hour, he was trapped by another exemption. The fact that he performed management duties more than 50 percent of his time catapulted him into the Executive Exemption bracket, for which overtime is not paid.
"When I first started undertaking the cross-country trips, I was a programmer 90-100 per cent of the time," says John. "As the company grew and new people came on board I found myself in a more knowledgeable position; in meetings I would be instructing them and so naturally that moved me legally into a management position. If I'm programming only 10 percent of the time, I'm management."
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California labor laws also confer an Administrative exemption status on computer professionals who spend at least half their work time on software and systems analysis and design."My advice to anyone going into the field is to know the law in your state," says John. You can find the information on your state website, under labor law. Take the time to read it; you've got to know it. Quote it to your company.
"It's a good company, I get stock options--maybe someday they'll pay, and I do overtime. When I made filed the complaint to your site, it was for the guys under me, not for me. They're being treated alright now."
Computer professionals trying to claim can take their case to several places: the Labor Board, as an individual suit, or join a class action.
