Missclassified as exempt - Overtime Advice

Hey everyone.

I've been in my current job for almost 8 months now. I was hired on as a Technical Support Specialist LEVEL II for my current company. They are a managed service provider for IT services. I am one of 3 main technicians. My primary job includes the installation, maintenance, and day to day upkeep of computer systems and networks for up to 70 different clients. This includes over 80 servers and 500 workstations. I am ticket based and respond and troubleshoot as necessary.

Since being there I have been required to be on call once every three weeks and have worked multiple Saturdays for projects and routinely maintained a 45-50 hour work schedule for calls and problems that ran after hours.

We are required to use our vehicles extensively and are reimbursed 25/week gas stipend that does not change based on the hours or amount we drive.

Recently, I've become extremely frustrated with the added workload and time expected as my boss has questioned me wanting to leave at a reasonable time on multiple occasions. This has lead to various closed door heated exchanges with my boss. This prompted me to investigate labor and overtime laws and I have determined that my position really doesn't apply to exempt status.

Can anyone advise? I used the following links as reference.

http://www.dol.gov/whd/opinion/FLSA/...26_42_FLSA.pdf

http://www.ruderware.com/resourcecen.../012607_ld.htm

http://redmountainlawblog.com/2006/1...-requirements/

Do you think this applies to me? If so how should I present this to the owner of my company.

Thanks for your time!

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Comments

Plantwiz

I have no idea what you applied for and agreed to do when you accepted the job.

If you are getting away with 45-50 hour weeks and only being on call once every three weeks...dang, you have it good.

It may be time you look for something different. But seriously, I would love to have a 50 hour week. Once you start looking into seeing if you can nail your boss or company because of the hours you agreed you would work and now find them too much, it is time to leave. In the event they are incorrect and you are correct, is this really the environment you will want to continue to work in? I suspect you do not have much to go on. check with HR or your policy hand book.

And are your salaried? or Hourly? I am not certain I am clear on that distinction.

If your call tickets are forcing you to stay late, than one solution (and this will not be the favored answer) is you will want to work at becoming more proficient and possibly efficient in your troubleshooting skills. That will expedite some tickets. And yes, there will be a few things you cannot make load faster, or reboot faster, etc.. But the sooner you target in on the problem, the quicker solving it goes.

boobobobobob

Plantwiz wrote: »

If you are getting away with 45-50 hour weeks and only being on call once every three weeks...dang, you have it good.

I was thinking the exact same thing. Honestly in the private sector a 50 hour work weeks is not uncommon at all. You can ask for company time off - and i think you should if you work a saturday but CTO has to be taken off within the same week.

Also with your fuel expenses, does the money pay for your gas and the wear and tear on your car? In california mileage expenses are covered by law (i think it's 45 cents per mile) or something i don't know if there is something similar in your state. But if you are paying more for gas then you get back you should complain.

iBrokeIT

If you've had "heated exchanges" with your boss and things haven't changed then its past time to leave. Don't bother trying to use the law to change work environment, just leave. It won't be worth the time effort and expense to do so. How do you think your boss is going to treat you if you pursue using the law against him? That sort of thing won't exactly improve the relationship between you two. In a sense you may win that battle but you won't win the war.

paul78

Interesting... I don't often see people in IT that would want to be classified as nonexempt.

I assume you are making more than 23.63/hour and if so, your description of work probably qualifies as exempt. If you simply don't like working on-call, that's a different issue.

@plantwiz - exempt means to be exempt from overtime hourly pay that is govern by Fair Labor Standards Act. Exempt employees are salaried and must meet certain minimum thresholds.

Plantwiz

@Paul78,

Yes, I am aware of what exempt vs non-exempt means. The way I read the OP comment was that he wants OT pay, but he won't get it if he is salaried, and therefore he is not incorrectly listed as exempt. I wanted him to state that he is salaried...clearly.

Edit - hit return not space....grrrr.

Digging up obscure laws really doesn't may an employee desirable to keep around. Depending on the size of the organization, they have likely worked the kinks out of their scheduling and expectations vs. pay and he will lose in more ways than he can imagine.

I suspect, things are not bad, the OP simply doesn't like the terms any longer and therefore is likely at the time to seek a change of venue...and negotiation more clearly expectations and pay at the new place.

Call it experience.

BTW - none of the links work.

eansdad

If a company or manager can get away with not paying OT they will. Call your states wage and hour division of the State Department of Labor. They will be able to tell you if your are supposed to get OT or not and would be the 1st step to correcting it. Most states have reprisal laws. While not ideal to plan on suing if you get fired for reporting an illegal or precived illegal activity that is the recourse workers have.

jibbajabba

Only time I would use the law against an employer is when you get unlawful fired. And even then, going to court is just to get some $$ out of them. Apart from that - what IS the point ?

Don't get me wrong, I am not saying the company is right or wrong, just saying that the environment you work in is clearly something you cannot stand any more so it is time to move on.

Plantwiz

eansdad wrote:

If a company or manager can get away with not paying OT they will.

Perhaps a young company that hasn't learned the rules yet? And that is not an excuse, but even for employers the lines can be blurred. A company with a fully operational HR department, unlikely. Otherwise, everything else spot on!

(I have, over the few decades, witnessed co-workers who felt victimized call the State to report the boss or owner and never was the employer in error. The 'victimized' employee misunderstood the law or it turned out they were not working the hours they thought, it was because they arrived or stayed late on their own terms that made them appear to be around longer, or such...it has been so many years since I worked with those types that I likely forgot more of their complaints then I recall. I do know every single one used the company
Phone (several company time) and always hung up defeated.

The OP should call if he feels it is right to get clarification. My experience tells me he may not find what he wants. Though without being there, it is a one-sided story. He could find something favorable. And rather than sticking it to the employer (if in this case the employee is correct), I would still recommend getting another job rather than fighting this, because he will be under a microscope...and while there are whistleblower laws...I have yet to see the the whistleblower have a parade and get the 'corner office' as they say.

We agree to do what we agreed to do when we begin working for someone else...negotiate better next time and move on and up!

(Sorry that last bit is clunky)

Thacker

Sorry, here are the correct links.

http://www.dol.gov/whd/opinion/FLSA/2006/2006_10_26_42_FLSA.pdf

U.S. Department of Labor Opinion Finds IT Support Specialist Not Exempt from FLSA’s Requirements | Birmingham Business Law Blog

Rosco2382

Thacker I think without giving the additional info that others are asking for you are probably misunderstood. I normally get lucky and work 40 hours a week, but there are weeks I will work 50+, come in on Saturday's and Sundays, off hours. Unfortunately it comes with the territory. Like others have said, chalk it up to experience and maybe next time negotiate your salary for the extra hours you will inevitably put in.

colemic

Agree w/Plantwiz, although if you are in a position where you need to stay there for a bit, the best battle you can fight with be the gas stipend. $25/week = ~7 gallons of gas here. At 20 mpg (I wish, my truck actually gets about 13.5), that is reimbursement for ~140 miles of driving a week. If you drive that amount, and you received the gov. reimbursement rate (.45), your company would pay you $63/week.

But... do you really drive 140 miles/week, excluding to and from work? Point being, you may be better to stick with the stipend which pays no matter what. You'll have to do the math for your situation to get the numbers right. But, you may be stuick if that is what you agreed to, but a reasonable company will listen to a reasonable proposal.

minit

Thacker, I would leave the job. Getting into a legal battle with your employer is not a good idea. Find something else, and maintain them as a reference rather then burn the bridge.

Also, most IT jobs that I have seen have terrible work/life balance. Maybe look into switching careers?

Plantwiz

The gas issue to me is a mute point. Employers may offer a mileage reimbursement, but of they do not MANY states allow you to claim that as your deduction come tax time...and if they pay less than your state recommends then on is permitted to claim the difference for expenses in April.

@Thacker, I will check the new links in the afternoon. Thank you.

instant000

Somewhat related to what the OP saw, I experienced a bait-and-switch at one job.

We had an on-call phone rotation, so you'd expect to be on call once every three weeks (there were three system administrators).

It was a contract-to-hire gig.

AFTER hiring, everyone on the team was issued pagers.

By being issued a pager, I was now on call ALL the time. Please note that NO ONE had pagers before the newest batch of hires (one sys admin, a couple help desk and programmers).

Can you guess who refreshed their resume and began looking for a new job? This was a case of thinking you're getting one thing: on call once every three weeks, versus receiving another: on call every week.

ptilsen

This is a valid question from OP, but I don't think it should be too hard to determine if there's any chance you've been miscategorized. The law is a bit verbose, but not that unclear, as far as laws go, and the PDF link described it fairly well:

Computer Employee Exemption
Computer systems analysts, computer programmers, software engineers, and other similarly
skilled workers in the computer field who meet certain tests regarding their job duties are
eligible for exemption from both minimum wage and overtime pay as professionals under
FLSA sections 13(a)(1) and 13(a)(17). See 29 C.F.R. § 541.400(a). To qualify for the computer employee exemption, the employee must be compensated on either a salary or fee basis at a rate of not less than $455 per week or, in the case of an employee who is compensated on an hourly basis, not less than $27.63 an hour. See 29 C.F.R. § 541.400(b). In addition, “the exemptions apply only to computer employees whose primary duty consists of”:
(1) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;
(2) 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;
(3) The design, documentation, testing, creation or modification of computer
programs related to machine operating systems; or
(4) A combination of the aforementioned duties, the performance of which requires
the same level of skills.

We had to go over this pretty thoroughly with our HR company at my last position, and had to make changes as a result. In brief, IT professionals making below the threshold cannot be exempt, and IT professionals not doing the activities described cannot be exempt. From what little Thacker has posted of his job description, it would not qualify as an exempt position. However, there is most likely more to it than that, and the right job description or official duties could absolutely exempt you.

Additionally, you really need to weigh if getting into a legal battle over this is worth it over just quitting. Bottom line, if you can make the same or more to not be overworked, there's no reason not to quit. Still, it might be worth making the call and finding out more. Certainly, if you're underpaid and overworked outside the guidelines of the law, and don't have a better way out, then by all means, pursue this further.

I do have to say I disagree with the attitude that we should expect and accept working in excess of 50 hours or having extremely frequent on-call duties. If you like working that much, have that kind of time, and are in a job that gives you that much work, great, but that doesn't mean it is or should be the norm. I get in 40-50 each week, which is a pretty good work/life balance, and I wouldn't take another job that expected more than that unless it paid significantly more or came with some other sort of compensation, such as work-from-home, flex time, lots of PTO, general flexibility, etc.

minit

ptilsen wrote: »

I do have to say I disagree with the attitude that we should expect and accept working in excess of 50 hours or having extremely frequent on-call duties. If you like working that much, have that kind of time, and are in a job that gives you that much work, great, but that doesn't mean it is or should be the norm. I get in 40-50 each week, which is a pretty good work/life balance, and I wouldn't take another job that expected more than that unless it paid significantly more or came with some other sort of compensation, such as work-from-home, flex time, lots of PTO, general flexibility, etc.

I agree. Saying work life balance in IT is terrible is probably a little over board. On-call is understandably necessary, but definitely has a big negative impact on that work life balance. It can be tough to leave the house. Having to do that every three weeks would completely suck. I would never accept a job that didn't have some kind of extra compensation for being on-call.

Plantwiz

Thacker wrote:

http://www.dol.gov/whd/opinion/FLSA/2006/2006_10_26_42_FLSA.pdf

Ah....this is from 2006.

U.S. Department of Labor Opinion Finds IT Support Specialist Not Exempt from FLSA’s Requirements | Birmingham Business Law Blog

Also from 2006 and it is a blog and therefore not a valid reference.

*****

Listen, I am not looking to argue with you. (I am a m ember of a group who is fanatical about references and backing up one's comments and I am not going to do that here to you about this). I will take the links at face value...they are from seven years ago. Likely things have change, maybe for the better, maybe not?

So, the first step if you are still desiring to make a case out of this is get yourself current data about the State ruling. Second, get a written copy of your job description and title. go from there..

Personally, this is not a battle I would waste my resources on, you have already stated you have been in heated discussions with your boss...unless he is in poor standing with the higher-ups, you probably face losing even more ground as your job performance will come into question. They will find every time you were a minute late back from lunch. Took too long of a break. Used a computer for personal use on company time. Deviated from an appointment for something....you risk being put under a microscope. Partially to make you nervous and drop your case, and partially to ensure they win and destroy your credibility.

Likely why the majority of the advice I have seen here is to seek something different and move forward with your career.

@ptilsen and minit to say the attitude of "accept this type of 'abuse' because it is normal is unwarranted", well, I read too many posts of folks after-the-fact that their dream job 'sucks' for any number of reasons...usually money or hours. The responsibility to acquire the details of ones pay, hours, and company expectations of them falls to the job candidate. I am pretty certain I have improved my negotiating skills from when I first started apply for work. As a kid you go from, "sure, I can do that..." Move into "how much does it pay?" Next into "how much does it pay and how long do I need to do it?" And in later jobs "well, this is what I can do, and this is my expectations from you...do we have a fit?"

Mind you, I am spitballing here and may organize that example differently if I wasn't writing on the fly. However, I think the analogy plays out when folks enter into their dream career path too...Yes, I can...to "I will do it if I can have time for "x" and "y" and "z".

Long story short, based on the OP first post, my guess is that this is likely a first or second job in this designated career path. Accept that things are not working out, learn from this current job about what is liked and not liked, seek out a new job and this next time negotiate better.

And since IT isn't always just IT (meaning if the company one works for makes special widgets) the IT department will be at the mercy of the widget makers since IT is support and a huge expense (albeit a necessary expense for companies with full network needs)...all of a sudden, your buddy who works what seems like a shift but only has two weeks vacation seems better than the job you have with four weeks vacation but on call 75% of the time...and the night calls may only be 1-3 calls per evening, and less than 10 minutes of time on average.

Grass is generally not greener on the other side.

To the OP, find yourself your current laws before getting to worked up, things may have changed. While some HR departments may make mistakes on job classifications, I have run into a good number who really know their stuff! Be nice if you confront them.

Thacker

An update:
I presented this information to my employer on Friday and he agreed that our jobs fall under non exempt and has put in place steps to correct the issue. However myself and another in the same position as part of the process are also entitled to back pay... 60+ hours in my case and over 250+ hours in the case of my associate and I'm not sure how that will be handled by the boss. Also comp time is apparently completely illegal in the private sector and is not allowed to be used in leiu of overtime pay @ 1.5x the hourly rate of the employee.

Plantwiz

Congratulations!

Way to do the research, keep the level head and get done what needed to be done!

eansdad

Now just keep everything documented just in case they try to fire you or your associate.

Congrats though, it's good that the company is doing the right thing.

SteveLord

Or be as perfect at your job as possible. So they don't use the smallest mistakes against you later.

Plantwiz

Well, let's hope that doesn't happen in this case.