The Hidden Rip-off
Hundreds of thousands of computer workers, throughout the country are being denied a big chunk of the wages they have earned. How? These workers have been improperly classified as “Salaried - Exempt Employees.” Any employee so classified, receives a fixed annual salary. Every paycheck will be exactly the same, no matter how many hours the employee worked each week.
That classification saves employers millions of dollars a year, by the simple trick of not paying overtime wages. Whether out of ignorance, or deliberate intent, many companies automatically assign this category to all employees who are classified as “Computer Workers.”
Sorry, employers. It’s not up to you. Instead, both Federal and State Law sets forth the conditions by which employees may be classified as Exempt Workers. By far, most computer workers are mandated to be classified as “Salaried – Non exempt.” That means they are required to be paid the following
1.5 times their calculated hourly rate (annual salary/2080) for each hour beyond 8 hours in each day worked, or each hour exceeding 40 hours in a week.
2.0 times their calculated hourly rate for each hour beyond 12 worked in a single day.
Salaried Non-Exempt personnel must also be paid for two fifteen-minute rest breaks within each eight hour period worked.
2.0 times their calculated hourly rate for each hour worked on a legal holiday.
What Qualifications Must the Employer Meet to Assign Exempt Status?
As of September 2000, California recognizes an hourly computer professional exemption for certain employees in the computer software field. A computer software field employee is exempt from overtime pay if all of the following requirements are met:
- The employee is primarily engaged in work that is intellectual or creative and that requires the exercise of discretion and independent judgment; AND
- The employee is primarily engaged (spends more than half his or her time) in duties that consist of one or more of the following:
- The application of systems analysis techniques and procedures including consulting with users to determine hardware, software, or system specifications.
- The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications.
- The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems. AND
- The employee is highly skilled and proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering; (Job title not determinative) AND
- The employee's hourly rate of pay is not less than $45.84 per hour for every hour worked.
If the employer cannot show all of the above, the employee is non-exempt and entitled to overtime pay and other benefits. Such employees can recover wages going back three years (and in some cases four years) from the date a complaint is filed, but only up to those wages earned since September 2000.
If you are working as a computer worker for a company, you don’t need a law degree to determine whether you should be qualified as a Salary Exempt worker. First, let’s determine whether you are, indeed in that category generally qualifying for the classification, “Computer Worker.” Here is a list of titles and tasks which will be instantly suspect, if classified Exempt:
· Computer Technicians
· Software Engineer
· Customer Training Consultants
· System Administrator
· Graphic Designers
· Hardware Testers
· Engineers, Administrators, Analysts Employed by any of the Gaming Industry employers
· Systems Analysts
· Computer Hardware and Software Installers
· Computer Operators
· Desktop Services
· Configuring Employees
· Bug Fixing Employees
· High Tech Employees, Computer Professionals who do not require and advanced degree beyond a B.S. or B.A.
· Information Technology (Regardless of Title)
· Trainees or entry-level employees (Technicians to Programmers)
· Employees in computer-related occupations who have not attained the skill and expertise necessary to work independently and without close supervision
· Employees who are engaged in operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment
· Engineers, drafters, machinists, or other professions whose work is highly dependent upon or facilitated by the use of computers and computer-aided design software, including CAD/CAM, but who are not in a computer systems analysis or programming occupation
· Employees who write material related to computers for print or on-screen media or who write or provide content for computer related media such as the World Wide Web or CD-ROMS)
· Employees who create imagery for effects used in the motion picture, television, or theatrical industry
· Employees engaged primarily in technical support and client support
But if you have any doubts, go back to item 4. If your annual salary is less than $95,000 per year, and have one of these titles, or do these tasks, you are probably qualified to be classified as Salary Non Exempt, entitled to overtime wages, now, in the future, and for three or four years in the past.
So, How do you Collect?
You are not going to do it simply by complaining to your employer. Employers tend to have corporate personalities much like that of George Bush. They are the “Deciders,” especially, when you tell them something they don’t want to hear.
Unless you have kept very accurate records of your overtime hours, the employer can simply brush off your complaint, by saying you have no proof that you have worked these hours. Having classified you as a Salary Exempt worker, the employer has no obligation to track your hours, as it does when you are Salary Non-Exempt. You have the burden of proof that you indeed did work the claimed overtime.
Also, unless you have been laid off already, in an age where firings and layoffs are rampant, lodging a complaint is a quick way to hear, “Don’t let the door hit your butt as you leave.”
What it all comes down to is that it is far more difficult to take on the company as an individual, than as a group. Having successfully done so, I can tell you that it is a lot of work, a lot of frustration, and a lot of time spent waiting. If you wish to pursue that route, in
The Class Action Lawsuit
The Class Action lawsuit is to the 21st Century knowledge worker what the labor union was to the 20th Century blue collar worker. It requires group action by a large number of workers within a company taking concerted action to collect the overtime wages. Someone has to start the ball rolling by collecting the names of all computer workers within the company.
Once you have made the decision to explore the possibilities for a class action, that is the time for you to consult with an attorney specializing in this just this kind of action. This group of workers comes to be called the Class. One of few barriers to this kind of action is that you have to have a substantial number of individuals composing the Class, in order to make it worthwhile for an attorney to spend the time and money necessary to pursue this action. I am told that having at least one hundred in the class is a good starting number. (This is why I was forced to use the DLSE route. I took my action after being laid off, and no longer had access to my many co-workers, so had to resort to an individual action.)
Word of mouth is he best way to do this. Do not use company computers, company Blackberries, company cell phones, employee’s company email addresses, or the company IM. Instead, make your contacts personally, outside off company facilities, phone from home, use your personal email to the personal emails of others.
Your selected attorney will give you valuable advice on organizing and getting members of the class ready to pursue action. There are a whole number of advantages which may come very shortly after action begins.
- Except for a named individual who represents the class, all others in the class are completely unknown to the employer.
- All members of the class, including the named representative, are completely protected from any retaliation by the company. That may mean, that if you or other members of the class were to have been laid off, the company can quite possibly be stopped from taking this action, because it could easily be interpreted as retaliation – for which the penalties are very severe. Thus, if you know that layoffs are scheduled in the next several months, you might well use this as a mechanism to hold on to your current job while this action is in process.
- But in the end, what are the monetary benefits you can expect to receive, should this action be successful?
a. All overtime wages due to you, for up to four years preceding the date of filing your claim
b. 10% Interest on these overtime wages
c. 30 days regular wages, as a “Waiting Time” Penalty against the employer, for having failed to pay your wages when they were due.
That’s about it. Know that the hardest part is getting yourself motivated to take action – All the rest is down hill.