IT Personnel Overtime a Calculated Risk?

Irvine, CALabor lawyer Jose Garay says the number one objection he hears from IT Personnel (and from most employees in the computer industry) who consider filing an overtime complaint is that they are afraid of even asking for overtime; they fear that the company will retaliate. In reality, the high-tech industry is litigation adverse and is more sophisticated when it comes to processing lawsuits.

Hi-tech companies tend to have structured HR departments and are usually represented by the largest law firms in the world. The result is that even current employees are treated with extra care when they file claims, whether it is for overtime or other employment-related matters. In practice, employees who file claims against employers wear what is called in law the "golden clock." In other words, upon the filing of the lawsuit, the employee is treated with great care not to trigger further litigation for retaliation. When a case is settled, the agreement very specifically states what the company and its employees can or cannot say about current or former employers.

Garay says that his firm takes preemptive measures with current employees to shield them from perceived retaliation but that in the course of litigation it rarely--if ever--is implemented. His law firm has developed very highly specialized legal strategies to protect computer professionals and IT personnel.

"Anyone who files any kind of lawsuit, whether overtime, disability, or discrimination, does not have to fear retaliation because the company would be shooting itself in the foot," says Garay. "It would compound the legal liability and likely increase what the company ultimately pays the employee. None of my clients suffered retaliation as a result of filing an overtime claim and several even moved into better positions within the company EVEN after the filing of a lawsuit.

"I always ask my clients to really assess their situation and ask themselves some serious questions if they are considering a lawsuit," says Garay. "If you feel that there has been a serious wrong committed against you; that the company has not compensated you--not just for the hours but for the contribution you made to the company; and/or because you're not really happy in your position or you are being treated unfairly so that you have no viable growth opportunity in the long run, you have to ask yourself this:

'Am I better off continuing with an unhealthy work relationship or would I be better off getting paid the overtime I am owed EVEN if I am still working at the company?'

If you're an employee who feels you are being overworked and underpaid; if you are constantly passed up for promotions; if positions are sourced out overseas or you train then are terminated; if your performance reviews are either negative, inaccurate, more critical in nature as time goes by, and/or if your salary increases, stock options, bonuses and other forms of compensation are mostly subjective; and/or the opportunity to grow within the company is illusory--meaning that you have been promised an opportunity that doesn't reality exist, then perhaps you are being paid for your sweat and not your labor and you probably are entitled to a lot of overtime. And this is not your fault because either Wall Street forces, economic cycles, or the viability of the company (for lack of market share or a flawed business plan) does NOT translate into a realistic career path. If you are investing 50-70 hours a week with a company that cannot reward you for its own faults, then you probably should seek better pastures."

But where is there to go? Everyone knows that tech jobs, including IT Personnel jobs, are constantly being sourced offshore and companies are downsizing. Isn't it safer to stay put, at least until the economy turns around? Garay advises anyone who works in IT to keep in mind that their skill set is very marketable.

"A lot of companies recognize your worth and they will pay for those skills," says Garay. "Although your skill set may not be as valuable today due to economic downturns, the need for IT professionals is a constant and I believe it is a very good area to be in because computers break down and IT support is always in demand. I have advised many IT clients to cut deals with their own companies to go back and work for them on a contract basis and essentially start up their own shop.

One case I recently evaluated was a company that fired a lot of IT professionals over a period of about five years. The employees were working about 50-60 hours per week and some even got paid overtime. There was a lot of travel time and work from home was involved. The employees I interviewed complained that because they were severely restricted during the on-call time (they had to respond very quickly to tickets) they had very little personal time for themselves and their families. The company fired the majority of its employees so that they would not have to pay stock options, bonuses, expenses, 401K and other retirement benefits."

Garay says the reality is that the company is already waging a war of attrition.

Getting back to the IT Personnel skill set, Garay adds that this is a unique situation because the skill set can be like a commodity. "When a commodity is scarce, even though there may not be a great demand for it, it can become very valuable very quickly because the demand is pent up over time." He says to follow basic commodities to get an idea of the commodity nature of IT work.

"Another important element is that the law is changing," Garay says. "If you are with a company that does not really have growth opportunities; because of your age or your position or for whatever reason there is no long-term value to the job, you may be owed overtime—and the law clearly states that you can go back four years (in California). However, if you don't act, you may lose it forever."