Overtime Pay for High Tech |
IT Workers FAQ
Our Firm's Successes
Lieff Cabraser Heimann & Bernstein LLP is a national law firm with extensive experience successfully representing information technology ("IT") workers in class actions seeking overtime compensation. Together with co-counsel, we have recovered over $100 million for thousands of IT employees across the country in class actions against CSC ($24 million settlement in 2006), Wells Fargo ($12.8 million settlement in 2006), and IBM ($65 million settlement in 2007). We also represent IT employees of Cadence Design Systems in a class action in which a settlement of $7.5 million has been preliminarily approved by the court.
The Types of IT Employees Who Have Recovered Overtime Pay
These cases each involve hundreds or thousands of class members, who perform their company's valuable technical support function – installing, maintaining, supporting, and repairing computer software and hardware, for external clients or for customers within the company.
The class members often work in positions such as:
- System Administrators
- Database Administrators
- Web Administrators
- Network Engineers
- Business Systems Consultants
- Helpdesk Support Workers
- Deskside Support Workers
- Systems Analysts
- IT Specialists
- similar positions
It is important to understand that the most important issue is not whether an employee has a certain title, but what tasks or duties the employee performs in his/her job.
Should You Be Getting Overtime Pay?
In general, IT support workers are often eligible for overtime pay even though they are salaried and highly paid (including high base salaries plus bonuses). There are several factors that determine whether an IT employee is eligible for overtime:
Positive Factors
(likely to get OT) |
Negative Factors
(unlikely to get OT) |
General Concepts
- Perform repetitive tasks
- Follow established procedures, protocols & guidelines
- Keep computer systems up and running
- Operate under supervision & rules
- Perform such work a majority of time (even if also perform substantial other work)
|
General Concepts
- Address new problems each day
- Exercise creativity and discretion in crafting solutions
- Select and design computer systems
- Operate independently
- Perform such work a majority of time or as primary duty
|
Specific Tasks
- Install software updates, virus definitions, patches
- Configure settings for existing applications & systems
- Follow change management controls and/or training when altering systems & environment
|
Specific Tasks
- Design programs, applications, operating systems, networks
- Write substantial programs & applications
- Have independent authority to make significant changes to systems and environment
- Participate in far-reaching research projects, making important decisions
|
How The Law Works
The federal and state overtime laws: The federal Fair Labor Standards Act (FLSA) and various state laws provide that all employees should get overtime unless they fall within certain narrow exemptions. (Click here to learn why the FLSA was passed.) The FLSA and many state laws provide that nonexempt employees must be paid time-and-a-half for each hour over 40 worked in a week. California law is even more protective. It provides the same protection (1.5x the hourly rate for hours over 40), plus it provides for time-and-a-half for hours over 8 in a day, double time for hours over 12 in a day, an unpaid 30-minute meal break for every 5 hours worked in a day, and a paid 10-minute rest break for every 4 hours worked in a day.
What are the exemptions: Under the FLSA and state laws, there are several exemptions: administrative, computer professional, learned professional, and executive. If the employer can prove that an employee satisfies the definition of one of these exemptions, the employer does not have to pay the employee overtime, or provide him or her breaks. The most common exemptions companies use for IT workers are the administrative exemption and the computer professional exemption, described below:
The administrative exemption: This is one of the most common exemptions. To fit within this exemption, the employee must exercise independent judgment and discretion regarding matters of substantial importance to the employer. This means two things. First, the employee's work must be creative and free-ranging – not routine, repetitive, unambiguous, governed by established procedures, or closely supervised. Second, the employee's work must also involve running the company's business – not simply playing a support function.
The computer professional exemption: This exemption is for computer programmers (coders) and architects. However, just because an employee has a certain title, it does not mean he or she is properly classified as exempt. For example, companies include words like "engineer," "specialist," or "architect" in a job title, but that does not mean that the employee necessarily performs computer professional work. The important question is what the employee does, not what he or she is called.
Who makes the exempt/nonexempt decision: Companies are free to classify their employees as hourly nonexempt (i.e., eligible for overtime pay and these other protections) or salaried exempt (i.e., not covered by the FLSA or equivalent state laws). Understandably, companies have an incentive to err on the side of classifying employees exempt, so that they can require the employees to work more than 40 hours each week without paying them more. So, classifying employees as exempt allows the company to get more out of its employees for less.
How the exempt/nonexempt decision is challenged: Enforcement of the FLSA and state equivalents is left to (1) government agencies (e.g., the Department of Labor) and (2) private citizens. Thus, government regulators may investigate a company and impose a fine if the company has misclassified employees as exempt when they really should be nonexempt and therefore compensated for overtime hours worked. Likewise, private citizens can sue their employer, making similar claims.
How class actions help employees: Class actions provide a powerful tool for employees challenging their employer's classification decision, allowing them to band together and efficiently challenge a widespread misclassification as a group. This approach gives the employees more power, and allows many employees to recover compensation thanks to the efforts of just one or a few plaintiffs.
Attorney Contact For IT Workers
Current and former tech works who wish to report in confidence their work experiences and submit a complaint welcome to contact a lawyer at Lieff Cabraser by clicking here. There is no charge or obligation for our review of your claim.
About Lieff Cabraser
Lieff Cabraser Heimann & Bernstein, LLP, is a 50-plus attorney law firm with offices in San Francisco, New York and Nashville. Our firm is committed to protecting the rights of employees nationwide to equitable treatment and fair wages. Lieff Cabraser employment attorneys have represented thousands of employees seeking to vindicate their rights in cases involving gender and race discrimination, overtime pay and wage and hour violations, and the mishandling of funds in pension and 401k plans.
We served as counsel in a class action suit against Abercrombie & Fitch, which led to a novel, precedent-setting settlement in 2005. The settlement required the retail clothing giant to pay $40 million to Latino, African-American, Asian-American and female applicants and employees who charged the company with discrimination. In addition, Abercrombie was required to promote diversity among its workforce and to prevent discrimination based on race or gender.
We served as class counsel for approximately 25,000 female employees of, and applicants for employment with Home Depot. In 1998, the Court approved a settlement of the case in which Home Depot agreed to modify its hiring, promotion and compensation practices, and paid $87.5 million, one of the highest amounts ever paid in a gender discrimination case.
Lieff Cabraser has obtained lost wages and benefits for employees in overtime pay lawsuits, including the successful representation of employees of Denny's, Carrow's, the advertising firm TMP Worldwide, the California State Automobile Association, as well as several corporations in the computer industry including IBM and Computer Sciences Corporation.
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