Issue: Overtime pay improperly denied
Answers to Frequently Asked Questions on IT Worker Overtime Pay Law
Lieff Cabraser represents IT and high tech employees across America in overtime lawsuits charging that their employers misclassified them as independent contractors or as salaried, exempt employees to deprive them of overtime pay in violation of federal overtime and state wage and hour laws.
As explained by historian and labor rights advocate Marjorie Elizabeth Wood, worker misclassification, often consisting of wrongly labeling an employee as an “independent contractor,” is a tactic employers use to avoid providing overtime pay and other employee benefits guaranteed under the law.
In overtime class action lawsuits, we have obtained over $100 million in overtime pay for tech workers at multiple companies including CSC ($24 million settlement in 2006), Wells Fargo ($12.8 million settlement in 2006), IBM ($65 million settlement in 2007), Cadence Design Systems ($7.7 million settlement in 2008), IBM ($7.5 million settlement in 2010), AT&T ($12.5 million settlement in 2011), Premera Blue Cross ($1.45 million settlement in 2011), and Wells Fargo ($6.72 million settlement in 2011).
The following is a brief discussion of some common questions affecting overtime pay and IT overtime exemption. It is not intended to provide specific legal advice.
Who Deserves Overtime Pay?
All employees who don’t fit within certain specific, narrow “exemptions” to overtime laws are entitled to be paid premium overtime pay for every hour of overtime they work. Overtime is defined as work over forty hours in a week under federal law, and often has slightly different definitions under various state laws (for example, some states put restrictions on work beyond a certain number of hours per day). These federal and state overtime pay laws exist to ensure that companies don’t force employees to work long hours without premium compensation, and to incentivize companies to employ more people in efforts to combat unemployment.
Do Job Titles Matter in Questions of Overtime Pay?
Your job title does not determine whether you are entitled to overtime pay. In many cases, IT support workers are eligible for overtime pay even though they are salaried and highly paid (including high base salaries plus bonuses).
IT employees who perform their company’s valuable installation and technical support functions – installing, maintaining, supporting, and repairing computer software and hardware, for the company itself or for customers of the company – have recovered overtime pay. Their job titles have included:
||Helpdesk Support Workers
||Deskside Support Workers
|Business Systems Consultants
|and similar positions
More important than the employee’s job title, are the tasks or duties the employee performs in his/her job.
Should You Be Getting Overtime Pay?
There are several factors that determine whether an IT employee is eligible for overtime:
(likely to get OT)
(unlikely to get OT)
- 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)
- 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
- Install software updates, virus definitions, patches
- Configure settings for existing applications & systems
- Follow change management controls and/or training when altering systems & environment
- 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 Does Overtime Law Work?
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. 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 if there is no accurate written record of my overtime hours?
If the court finds that you are eligible for overtime pay, you are entitled to be paid for every overtime hour you worked. If there are no written records, you are entitled to prove your entitlement by describing your best recollection of your hours worked (e.g., you generally worked from 9:00 am to 6:00 pm Mon-Fri with a 30-minute break for lunch, plus an average of 1-2 hours each evening Mon-Thu, plus 2-3 hours each weekend, for a total of 42.5 + 6 + 2.5 = 51 hours per week).
Even if the employer has been keeping hours incorrectly (e.g., encouraging you to enter fewer hours than you actually worked in a system like Kronos), you are still allowed to come forward with your best recollection of actual hours worked. Courts are very realistic about the limits of records and the importance of individuals’ memories in calculating overtime hours and therefore damages.
What if I no longer work at the company?
You are still entitled to overtime pay that you should have received. Both former and current employees can sue for overtime.
What if I’m classified as salaried/exempt?
Even if the company calls you a salaried, exempt employee, you may still be eligible for overtime pay.
If I signed a severance, release or waiver, can I still sue for overtime pay?
Even if you received severance or signed a release or waiver of your overtime claims, you may still be able to get the full amount you are owed. Usually, you can only waive your right to overtime in a court proceeding or government action.
What if this is a “right to work” state?
It doesn’t matter if your state is a “right to work” state. Even in such states, employees still have certain overtime pay rights.
Is there a disadvantage to waiting to make a claim?
Yes. For every day you wait to assert your rights, you may lose a day of backpay. This is because the law only allows you to reach back a few years in time, even if the violation was going on before that.