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Paid Overtime

I'm graduating in May and I just took a job with a relatively big software firm(800 engineers).  I had dinner with my father last night and he asked me if I got paid overtime.  I told him that I didn't and that the offer letter claimed that the job was "an professional exempt position which requires independent judgement, etc" so therefore no paid overtime.  He claims that this is not the case.

He has personal experience here.  He owns a retail company, and a few years ago he was  audited and had to pay a bunch of back overtime to his managers.  The auditors claimed that a position is only exempt if that person has the abillity to hire and fire people.  Many of his managers didn't have this responsibility.  My dad claimed that I have the right to be paid overtime, but that no one has probably challenged the company on it.  I told him that this probably wasn't the case, seeing as how I don't think ANY software company pays overtime to its programmers. 

Does anyone know what the actual laws say?  Do we programmers have a case to be paid overtime?  Clearly, if the law was on the side of the programmers and it went to court, this would mean big changes for an industry that relies on expected unpaid overtime.

David
Monday, April 12, 2004

The law for what country?

Mr. Obvious
Monday, April 12, 2004

We've gone over this here in the past a few times.  I seem to recall the general consensus being that the law varies greatly from state to state and country to country but, in general, salaried programmers are excluded from overtime pay. 

You're right that this would mean big changes for the industry -- we'd all be outsourced tomorrow!

SomeBody
Monday, April 12, 2004

There are several rules to determine whether an employee is exempt or non-exempt, however 'ability to hire or file' is _not_ the only one (and that wording isn't used in the regulations).  Your father needs to get a second opinion about the audit from someone who understands this area better.

OTOH, just because the company says you are exempt doesn't mean that you really meet the criteria to be exempt. You might want to investigate with a labor lawyer to see (and be prepared to take your new company to court if it turns out that you aren't).

[I'm assuming US laws]

RocketJeff
Monday, April 12, 2004

Most programmers are probably not exempt and should be paid overtime. Especially if they are not directing a team, with the power to set others schedules, or working so independently they probably should just be a consultant. I don't believe this has ever been challenged though.

This would be the sort of thing that unions would be good at challenging because they could pool the collective resources of many. Don't start about unions being for dumb blue collar workers - teachers, pilots and other professionals have unions. On the other hand, programming is considered blue collar or less by management for every purpose except overtime pay. Just read those Ganter reports to see what opinion management has of programming as a 'low skill' job.

Tony Chang
Monday, April 12, 2004

I don't know much about the law in this area but I've always been "exempt" except for my first position out of college with a big consulting firm.

In that job I received an annual salary, but I reported my hours and for any hours over 40 I received "overtime" based on a computed hourly rate (salary/2000 I think).

BUT the first 80 hours of overtime went towards extra paid time off, not extra pay.

In all my other jobs, I did not report hours and was paid an annual salary regardless of how much I worked.

I think the basic rule is that if you are paid based on hours worked, or required to work a certain minimum number of hours a week, then there is a good chance you are not "exempt."  But consult a labor-law expert to be sure.

My own take on this is that as long as you understand going in that there is "no paid overtime" you don't really have much to complain about later.

AMS
Monday, April 12, 2004


Something to consider....

If you want to be treated like an hourly employee and earn overtime, then you have to accept the downside, which is that your managers will then treat you like an hourly employee.

"You plan on collecting for overtime? Sure, but from now on you are limited to 1 bathroom break every other hour and you better make sure lunch is precisely one hour or else I'm docking your pay."

"Joe, why were you 10 minutes late today? That's gonna cost you."

"Is that Joel On Software you're reading there? Hmmm...I'm gonna have to dock you 20 minutes for that."

Regardless of what the law says, accept the fact that you are a professional. Part of that includes the fact that you will work some overtime. If you end up working for a sweatshop that abuses overtime, then you go somewhere else.

Mark Hoffman
Monday, April 12, 2004

"""managers will then treat you like an hourly employee."""

Which, IME, is what happens in 99% of companies!!!


Monday, April 12, 2004

[nod] Companies work both ends against the middle. You're exempt, so you don't get overtime, but you have to take "vacation" in one-hour increments. Work 50 hours one week = normal pay. Work 39 hours the following week = one hour "vacation" time.

IT workers have their own paragraph in the exemption law (probably lobbied for by companies that were distressed to find that we generally *like* working 12-hour days)

IMHO one of the factors in whether or not an employee is "exempt" should be how their vacation time is treated - if they're expected to take it in one-hour increments, then they're not exempt. If, however, general practice is that they take it in 1/2 or full day increments, and shorter days are simply an occasional "thing" then they're exempt.

(The whole "exempt" thing originated with executives who are always quasi on the clock)

Philo

Philo
Monday, April 12, 2004

In California there is a minimum salary requirement to be considered exempt. The last time I checked it was $42 an hour. At that time it applied to contractors as well as employees and so the contractors were being limited to 40 hours a week. 

john
Monday, April 12, 2004

I worked as an hourly in a production environment (back in the day) and we had a system for "working" the overtime system.

Each operator had a production quota of so many parts per shift. One could normally meet one's quota blindfolded with one arm tied behind his back. We knew days in advance when we would be required on Saturday, so we would work a bit, um how shall I say, harder not smarter, for several days during the week to build up a production "kitty". Well, sometimes there were also smarter ways to get it done too, but if one put in a suggestion to make the job more efficient, not only did you recieve a pittance as reward, you were rewarded with having to do that much more on a permanent basis.

So, we would turn in only each day's quota of parts but withhold the paperwork comprising the kitty and roll forward the unclaimed kitty. By Saturday we would often have a full day's quota or nearly so and not only get 8 hours at time-an-a-half, we would be able to loaf the entire day away.

Lesson for managers: The whole overtime thing can be used against you. It depends on what sort of incentives you give your emplyees. We had no incentive to improve the process, only to get the extra pay.

old_timer
Monday, April 12, 2004

"So, we would turn in only each day's quota of parts but withhold the paperwork comprising the kitty and roll forward the unclaimed kitty."

Ha! That reminds me of a manager we had at one of my first jobs. It was a new production facility, so the quota was actually a formula that included regular increases to the previous week's quota. The plant supervisor made us a deal--anything over quota by a certain amount went into a 'bank'. When we had enough in the bank to account for a full day off at expected production levels, we got an extended week-end.

The funny thing is that we also had the lowest absenteeism rate and lowest defect rate of all comparable facilities.

Ron Porter
Monday, April 12, 2004

I can see how the OP's father would be confused, as the factors that make an employee exempt differ by category, and indeed for the "executive" category hire/fire authority (or at least "make recommendations regarding decisions affecting the employment status of others") is a requirement. However, most software developers fall under a different but nevertheless exempt category, "professional":

---
Professional Exemption
Applicable to employees who perform work requiring advanced knowledge and education, work in an artistic field which is original and creative, work as a teacher, or work as a computer system analyst, programmer, software engineer, or similarly skilled worker in the computer software field; who regularly exercise discretion and judgment; who perform work which is intellectual and varied in character, the accomplishment of which cannot be standardized as to time; who receive a salary which meets the requirements of the exemption (except doctors, lawyers, teachers and certain computer occupations); and who do not devote more than 20% of their time to work other than that described above.
---

This is from the horse's mouth at http://www.dol.gov/esa/regs/compliance/whd/whdfs17.htm
Of course state laws might impose additional restrictions, though I can't recall having encountered any with regard to exemptions in the states I've worked or managed in (which include CA, NY, WA).

John C.
Monday, April 12, 2004

> If you want to be treated like an hourly employee and earn overtime, then ... managers will then treat you like an hourly employee.

What a load of crap. They will treat like someone who respects his work. They will also think twice before trying to make you work 90 hour weeks. Highly paid journalists who hob nob with people way over your head get overtime and dinner allowances and every other convenience.

> Regardless of what the law says, accept the fact that you are a professional.

Real professionals like accountants and lawyers make sure they get paid well. They don't give advice for free. They don't work through recruiters. They don't do open source accounting or law. And they sure as hell demand overtime if they're not on a partner's salary or a track to partner grade.

Real professional
Monday, April 12, 2004


"Highly paid journalists who hob nob with people way over your head get overtime and dinner allowances and every other convenience."

What in the world does that have to do with software developers working overtime? While I'd love to argue that "highly paid journalists" probably don't get paid on an hourly rate, I'll resist the urge because it has nothing to do with original topic.

"Real professionals like accountants and lawyers make sure they get paid well."

Really? I know plenty who don't. Once again, how does this relate to overtime for software developers?

"They don't give advice for free. They don't work through recruiters. They don't do open source accounting or law. And they sure as hell demand overtime if they're not on a partner's salary or a track to partner grade. "

Are you suggesting that attorneys and accountants don't work overtime? Once again...off-topic, but if you don't think attorneys frequently work for free look up "Pro Bono". It's often a state requirement.

Perhaps you are suggesting that software developers aren't professionals in the sense of accountants, lawyers or (chuckle) journalists?

Mark Hoffman
Tuesday, April 13, 2004

Your problem is that you argued "professional" involved some sort of obligation not to worry about pay, whereas I pointed out that most of the groups generally held up as exemplars of "professional most certainly do worry about pay, to the extent of making sure they are paid very well.

More than software developers even if software developers did get overtime.

Your reference to pro-bono work is irrelevant. That constitutes a tiny proportion of any law firm's work and is often part of its marketing effort anyway.

Real professional
Tuesday, April 13, 2004

I don't want to be paid overtime.

Have not earned overtime since working on production line in student days.

This is despite some 80 hour weeks.

Tapiwa
Tuesday, April 13, 2004

"""
I don't want to be paid overtime.

...

This is despite some 80 hour weeks.

"""

I was going to insult you, but I think your statement speaks for itself.

  
Tuesday, April 13, 2004


"Your problem is that you argued "professional" involved some sort of obligation not to worry about pay, "

I don't see that I argued for that, but if you took it that way then let me clarify.

As a professional, it should be a two way street with your employer. Sure, you might work some overtime but at the same time you also might slip out of the office early or a get day comped. Give and take.

As I mentioned, if you work for someone who abuses this then you find work elsewhere.

Does this mean that if you average out your entire worklife it works out to 40 hours a week? That's doubtful. But that's true for just about any salaried position.

Hey..what can I tell ya..that's life.

Mark Hoffman
Tuesday, April 13, 2004

"""Give and take.

As I mentioned, if you work for someone who abuses this then you find work elsewhere. """

Wow. Reading you is like a time warp back to '99.

  
Tuesday, April 13, 2004

The companies I've worked at (defense industry) all had paid overtime, at 1.0X. I think either that (or no overtime expected) is fairly common with higher CMM level and even some ISO9000 companies.

You need to ask during the interview process what their policy is for overtime, and if they say "we consider our programmers professionals and expect they will do what is needed to get the job done" then ask about their process to determine deadlines and schedules. It's not a hostile question, you want to know how disorganized their development process is and how likely it is they just hop from crisis to crisis with everybody at overtime.

Lou
Tuesday, April 13, 2004

Having just come from a six month hourly contract SDE position, in between two FTE salaried SDE positions, here is my take:

I would /much/ rather work salaried than contract hourly. Why? On the hourly pay job, I was not allowed to work more than 40 (this is even /with/ OT as straight pay) however I was pressured severely to deliver "on-time". Once the schedule started slipping, I was requiered to put in many ~80 hour weeks, making up for managements short-sightedness and greed.

Even beyond that, the difference in attitude towards 'ownership' and in tracking attendance is extreme. In a slaried position you are professionals working together toward a goal (on a good team, in good company); in the houly, you end up only caring about the buck, and how you can take management for the best (for you wallet) ride.

The important thing for a company that uses salaries is to provide /adequate/ bonuses or comp. time (which is as good as gold to me) when employees give you time beyond the 40 hours that are the minimum bar.

I would much rather work toward an end product that I can be proud of, than make a few bucks more and hate it.

The bottom like is like almost every other one in regards to employment issues in an at-will employment society: There will be good employers and bad--if you aren't happy (in whatever way you define it) at your job, get a new one!

davman
Tuesday, August 24, 2004

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