Fog Creek Software
Discussion Board




Class action lawsuits for unpaid overtime

I have seen a couple websites now like this one.

http://www.faceintel.com/overtimeclassaction.htm

Are these websites started by crank ex-employees with a grudge?  Or are they serious?

Is anyone aware of a case where a company has been forced to compensate its *salaried* workers for unpaid overtime by a court?

How about specifically programmers, and specifically in CA?

I believe that my employer has been unfairly doing the same thing, but I am wondering if there is any legal basis for standing up.  My gut feeling is no.

Nikolai
Thursday, November 06, 2003

Just say "Sorry I cant work back tonight"? Or is that not possible in your state? - If you think you should be able to sue them into paying you, why not just refuse to do it in the first place.

ChrisO
Thursday, November 06, 2003

It's not that simple.  You don't work alone, of course.  If everyone else is there from 9am to 10pm, and you leave at 5, then they can't get things done without you.  Thus no one will trust you with important things, give you any responsibility, etc. -- and your performance reviews suffer.

It doesn't help when you are handed a schedule that is not doable without overtime, and have no say to change the schedule.  It doesn't feel good for a good worker to constantly be behind schedule.  It is pretty much a psychological game with the schedule.

It is part of the culture of the company.  The genius of the managers is to have brainwashed everyone.  Have you ever worked in such a place?  Why does anyone work overtime when they don't want to?

Nikolai
Thursday, November 06, 2003

"Have you ever worked in such a place?  "

yes.

"Why does anyone work overtime when they don't want to?"

fear and wimpiness.

ktm
Thursday, November 06, 2003

Just another plug for "Philo's definition of 'exempt'"

"You must be paid as your vacation time is deducted."

In other words, if you come in two hours late for work and you're required to take two hours "personal time" to compensate, then you get paid for every hour you work past 40/week.

Philo

Philo
Thursday, November 06, 2003

Huh?  I didn't get the your definition Philo... please explain.

Also, about the other posts -- what is this, usenet?  The issue is not whether I'm a wimp.  The issue is whether there is any legal basis for such lawsuits.

Nikolai
Thursday, November 06, 2003

What Philo is saying is that if the company want you to work late and not pay you, then they should be prepared to pay you when you take time off, for example to go to the doctor, visit your mistress, go for an interview for another job, etc. Essentially, the arrangement should be fair. At least, I think that's what he was saying :)


Thursday, November 06, 2003

The short answer is, yes there is a legal basis for a lawsuit to collect overtime, but it depends on the particulars.  Under U.S. law (the Fair Labor Standards Act, or FLSA), lower-level employees are entitled to time-and-a-half for any hours worked above 40 hours per week.  But "exempt" employees (those with significant management or professional responsibilities) aren't entitled to overtime -- just a salary.

Whether programmers qualify as "exempt" is rather fuzzy, and really depends on the individual employee's specific job responsibilities.  But as Philo suggested, the employer can't have it both ways -- if the employer treats you like an hourly employee regarding doctor's appointments, lunch hours, etc., you're probably entitled to overtime.  When in doubt, contact an attorney.

Robert Jacobson
Thursday, November 06, 2003

Basically, if they start treating you like an hourly employee ... penalizing you for an hour here and an hour there (even though on average you're doing more than 40 hours/week), they are in danger of also having to pay you like an hourly employee.

If you want unpaid overtime, you should be willing to allow for some paid undertime.

--
Thursday, November 06, 2003

Contract Law doesn't apply?

Simon Lucy
Thursday, November 06, 2003

Effectively, when the job market sucks, no, contracts don't apply :-) It's all about supply & demand.

Frederic Faure
Thursday, November 06, 2003

BTW, to clarify - that's *my* personal opinion on how overtime should be treated. It is NOT law or a legal opinion. Current law uses the definition of "exempt" to determine the requirement for overtime. In general, most IT workers are "exempt" so there's no Labor Law relief for unpaid overtime.

After labor laws, then yes contract law applies. Now go read your employment contract and see what it says about overtime or working hours. It's a sure thing the manager that's making you work overtime hasn't.

Let's say the contract says "Your workweek will be 40 hours." Then when a manager consistently makes you work longer you might be able to argue that management has modified the contract through their actions. Or that management is in breach of the contract.

Philo

Philo
Thursday, November 06, 2003

Anyone who says that it's simple to just say no has only worked in high demand areas and is rather naive.  I'll expand on this topic in my usual pompous bombastic way. ;-)

The sort of companies that demand unpaid overtime from engineers and developers tend to be located in tech-poor areas where the techies have few, if any choices for comparable employment.  In my area, just about every company that hires programmers works them into the ground or makes other outrageous or harrassing demands.

Isolation: the fact that a given area is not tech-aware is part of the syndrome. Constant overtime, as most clueful developers know, is a symptom of bad management and even worse technical leadership. The technical  people in a given "flyover" area who work under these terms tend to only see things done very badly. So there's no culture of doing things properly. Hacking, all nighters, and moronic "professional work ethic" pressure are all part of the deal.

One last thing. The "exempt labor" legal label is probably the biggest lie and ripoff of engineers and CS people that has ever been invented. People who work in slave labor circumstances rarely have much real discretion in the type of work they are permitted to do. When programmers are being told to work the weekend or else, that's about as "blue collar" treatment as I can imagine.

Bored Bystander
Thursday, November 06, 2003

I used to work for a company that got sued for back wages by an exempt employee - and LOST.  He was a mechanical engineer working on a new product introduction.  The had him working 80+ hours per week.  After a while, he decided to keep a log of his hours. After the product was released, the company let him go. He decided to get a lawyer and sue for overtime wages.

Even though he was an exempt employee, the court found in his favor.  The ruling was basically that there are reasonable limits to exempt status. After that, the company mandated that all exempt employees work a straight 40 hour week.

I've never heard of another case similar to this, and I don't know all the details of the case. I was an intern at the comapny and was told about the case after getting "caught" working late one evening by my manager.

Nick
Thursday, November 06, 2003

Isn't it funny that they still didn't get it?
Instead of forcing everyone out at 5pm, just start paying overtime and getting managers to manage their P/L.

Philo

Philo
Thursday, November 06, 2003

Forced overtime is the refuge of lazy, stupid managers who refuse to budget appropriately for projects.  There is no incremental cost associated with unpaid overtime. It's easier to tell someone to work unpaid to make up for bad planning and crappy methodology than it is to have your sh*t together as a business to begin with.

Bored Bystander
Thursday, November 06, 2003

>> Isn't it funny that they still didn't get it?
Instead of forcing everyone out at 5pm, just start paying overtime and getting managers to manage their P/L. <<

Actually, they were surprisingly competent about it.  You could work extras hours if you really needed to. You just needed to talk to the department manager about it.  That way they could keep excessive hours in check, and they would provide comp time instead of OT pay. They just expected projects to be managed to a 40 hour work week - a policy everyone liked.

Nick
Thursday, November 06, 2003

I actually had this conversation over lunch:
coworker A: "What if coworker X leaves, and the boss asks you to do his work?"
me: "Whatever.  There's still only 40 hours in the work week, and only one highest priority on my list."
A looks blankly at me for a minute.
A: "Huh.  I guess you're right."
A: "Well, what if X leaves and the boss asks incompetent coworker Y to do his work?"
me: "Well, it's his funeral."
A: "You gonna tell him that?"
me: "If he asks, yes.  Otherwise, I'll be polite and assume he knows."

A position of strength is a wonderful, wonderful thing.

Mikayla
Thursday, November 06, 2003

In the EU we have the Working Time Directive which is intended to ensure that no one is forced to work more than 35 hours a week.

In practice there are so many exclusions and employees are encouraged by one means or another to give up that limit that it probably doesn't make that much difference.

Although there are mumblings about the exclusion of doctors being removed in 2005 which some are saying would mean wards and casualty units would close at some times.  Which will simply mean they won't close and there'll be a more subtle set of exclusions.

Apart from the Working Time Directive, an employment contract here might include vague terms such as 'work as and when required' but then custom and usage tend to be taken into account. 

Simon Lucy
Thursday, November 06, 2003

I know cases where people received overtime through the intervention of a union. (So it was a lot cheaper than a class action.)

The people had been hired under an agreed award and the company was aware that it was reneging on that agreement.

Feels good
Thursday, November 06, 2003

>"There is no incremental cost associated with unpaid overtime."

Or more accurately, there is no *directly observable* cost associated with unpaid overtime.  If the overtime is excessive and frequent, the costs will manifest themselves in higher defect rates, badly structured code, increased turnover, and of course the risk of lawsuits.

NoName
Thursday, November 06, 2003

Just caught up with this one.

Simon Lucy is wrong. The EU Working Time Directive, which was introduced under health and safety regulations, limits employees to working an _average_ 48 hour week, unless there is a negotiated opt out. The regulations also insist on a minimum of an 11 hour rest period during any given 24 hours and for weekly rest periods of at least 24 hours in each 7 day period.

There is nothing in the directive about pay, so if you're working over your contracted hours you'll have to rely on contract law. I personally think that any one _dismissed_ for refusing regularly to work beyond their contracted hours, particularly if unpaid, would have a good case for unfair dismissal.

I've seen so many cases of employees having physical breakdown as a result of excessive pressures put upon them that I would be interested to hear if anyone has ever just walked out and subsequently brought a succesful action for constructive dismissal.

David Roper
Sunday, November 09, 2003

I've been to a management course where we were said not to encourage our workers to do overtime, specially by paying any extra. Logic behind it is simple: "people very quickly learn to do nothing during conventional working hours and tend to do overtime, because its paid better."

Well, that's not exactly something I do personally agree with, but sometimes its true.

Another reason for overtime being bad - people usually take those hours away from their rest and work much worse during the normal day.

Overtime can not be forced, it needs clear motivation and leadership. It may be used very rarely under exceptional circumstances and be propely rewarded depending on result, not the time spent itself.

Vlad Gudim
Tuesday, November 11, 2003

*  Recent Topics

*  Fog Creek Home