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Law Firm Fighting For White Collar (IT) Overtime 573

Posted by Zonk
from the they-work-a-bit-too-hard-as-it-is dept.
Maximum Prophet writes "Programmers and System Administrators typically don't get overtime. A law firm based in Nevada is looking to stand up for white-collar workers around the country, trying to reverse decades-old (and incorrect) thinking about what it means to work in an office. 'Computer workers of various stripes, for example, have commonly not been paid for their extra hours ... But under California law, the exemption applies only for workers whose primary function involves "the exercise of discretion and independent judgment." In numerous lawsuits, Thierman and other plaintiffs' attorneys have alleged that legions of systems engineers, help desk staff, and customer service personnel do no such thing. Of programmers, Thierman says, "Yes, they get to pick whatever code they want to write, but they don't tell you what the program does ... All they do is implement someone else's desires.'"
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Law Firm Fighting For White Collar (IT) Overtime

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  • FairPay Act of 2004 (Score:5, Informative)

    by morgan_greywolf (835522) on Tuesday September 25, 2007 @09:31AM (#20742159) Homepage Journal
    It sounds like they are only doing this in California, which has ad the IT exemption for decades. For the rest of the country, IT workers were getting overtime until the so-called Fair Pay Act of 2004, which exempts IT workers (and other fields as well) from overtime, in exchange for guaranteeing overtime pay for anyone making less than about $23,000 a year. Of course, there are no IT workers making such a low wage (except in India), so that means all IT workers became affected.

    I, myself was getting overtime pay until 2005.
  • by walt-sjc (145127) on Tuesday September 25, 2007 @09:41AM (#20742317)
    Well, then ASK for it. Or quit. It's pretty simple.
  • by grommit (97148) on Tuesday September 25, 2007 @09:42AM (#20742323)
    You don't need a lawsuit. You need to get your employment contract modified or move to a different job. That's all.
  • by Waffle Iron (339739) on Tuesday September 25, 2007 @09:54AM (#20742501)

    Having government dictate the terms of my employment doesn't sound like a great plan to me.

    Before the government started dictating terms of employment, working 12 hours per day, 6 days per week was the norm. Maybe you want to go back to that plan.

  • Re:Never mind... (Score:1, Informative)

    by nomadic (141991) <nomadicworldNO@SPAMgmail.com> on Tuesday September 25, 2007 @10:05AM (#20742665) Homepage
    If the la says overtime must be paid, contracts who say otherwise are null and void.

    Contracts created after the law goes into effect, maybe; Article I, Section 10 of the Constitution prevents states from impairing existing contracts.
  • by cayenne8 (626475) on Tuesday September 25, 2007 @10:24AM (#20742927) Homepage Journal
    "Not everyone is willing to go through the crap that having a corporation entails."

    I'll agree..it takes a bit to learn at first, especially if you're like me, and not a real organized, paperwork type person. But, it is easily learned. I got a CPA to show me how and what to fill out. A few hours every month is not that big a price to pay if you want to make and KEEP more of your hard earned money. You pay bills don't you? This is pretty much just like adding a few more bills to the pile as far as time and paperwork go. I'd argue the benefits outweigh extra time consumed.

    "In addition, most employer companies will not contract directly, you have to go through another shop, that takes a cut. Nowdays, being independant is far less of an option than it used to be."

    To a great extent yes....but, one side benefit of this, it does take a bit of the risk of having to look for all the jobs yourself...which keeps a lot of people out of this type gig. No, you often don't get the full bill rate, but, getting $55-$70/hr isn't that hard, and it can make for a great living if you don't spend a ton, and wisely invest. One thing that companies WON'T do...is generally hire you 1099 directly...too much a risk to them from the IRS or you claiming to really be an employee later in life.

    Incorporate yourself (I went the "S" corp route)...and when you do a direct contract gig....you can do it corp2corp which shields everyone from the "employee" entrapment possibilities that can happen.

    "The attitude that if you are not willing to jump through all the hoops that the big-business/government coalition puts in your way, you do not deserve to earn a decent wage is just Nietzscheian nonsense."

    Well, I don't know about the attitude comment. I take the attitude that I have to be willing to do what it takes or do that bit extra to excel in the current work environment. As I wrote before, I perceive that jobs and employment have changed a great deal....especially since my parents' time. Since I do not perceive a direct job to have the benefits of old (job security, loyalty to employees, room to grow) I see a new paradigm for working if you want to make and keep money.

    And also, I guess it depends on what you think a 'decent' wage is. If you are willing to settle for what they'll pay you direct...and the unpaid OT...more power to you. But, in this day in age and the current market and where I think I forsee it going....I think the only way to have a positive employment future is to go more on your own, and take charge more of your own HR needs. YMMV of course.

  • by Ralph Spoilsport (673134) on Tuesday September 25, 2007 @10:45AM (#20743259) Journal
    It has always astounded me how people will cheerfully accept the ideology of the ruling class, when it is clearly not in their own interests. we can laugh at the blue collar dorks who slave away at WalMart for crap wages and crappier benefits and then turn around and vote a straight Republican ticket. Sure: making fun of people like that is like dynamiting fish in a barrel.

    But when one starts to push it a bit farther and point out to the so-called intelligensia that they are wilfully lying down and getting screwed by The Man, then everyone gets all touchy and pissy and the mods start in with Troll or Overrated or Flamebait ratings because the point hits close to home. And this happens in "the Real World" as well as this little nest of geeks here at Slashdot.

    People were litereally shot dead for the right to a weekend. This is all extremely well documented, even wikipedia [wikipedia.org]documents a few examples.

    So, when people cheerfully surrender to the Boss to do unpaid overtime, they are completely disrespecting the sacrifice of countless millions of people who have struggled to turn our society into something other than cheap wage slavery and a race to the bottom to benefit the few.

    So, it's about fucking time IT professionals grew a spine and started demanding their rights. And if the jobs get offshored, then organise the offshore workers as well. No one deserves to be exploited, and we can, by co-operative direct action, invent a better world for ourselves and our descendants. It just takes the ability to see oneself as a responsible citizen in an active democracy, instead of a mindless taxpayer/consumer who pays for services.

    RS

  • by esaul (686848) on Tuesday September 25, 2007 @11:06AM (#20743635)
    I would have to agree with the parent here. Not sure how it works in the states, but in Canada such laws are already in place (not that they are working well), and many IT companies routinely pay overtime. In Quebec, for example, we have a government agency - La Commission des normes du travail, whose job is to educate employees about their rights, and catch companies that mistreat their workers. Indeed, the whole reason why the 40/hr weeks were set as a standard is to prevent the potential abuse coming from employers.
    Contract worker or not, when one has been employed by a company for more than 3 months (maybe 4, I forget), they become eligible for all of the standard employee benefits including sick days, overtime pay, etc. see here [gouv.qc.ca].
    When employers submit their financial reports to the Revenue Canada, they have to specify hours per week. Adjusting the financial data to fit no more than 40 hours per week, is, well, highly illegal.
  • by C10H14N2 (640033) on Tuesday September 25, 2007 @01:05PM (#20745489)
    That's great to a point--I'm also a contractor and prefer it for precisely the same reasons.

    HOWEVER, there are circumstances of our current economy that make it simply not an option for many people. Namely, if you have any sort of medical condition, especially of the chronic and/or cardiac variety, and you don't want to die an early death or live in poverty conditions despite making $100k+ per year, getting individual or small group health insurance is a near impossibility and you're pretty much forced to work for a company with decent large group coverage.

    Despite the FUD about "HillaryCare," it is essentially just attacking the primary root problem of that: eligibility. For most of the population, it's not a monetary entitlement, it's just an eligibility entitlement. Essentially, the entire country is the "group" and you are entitled membership in that group, which is as it should be. You still pay for it, sometimes through the nose, but at least you can GET IT.

    Should that go through and that major risk is effectively removed, I imagine you'll find a lot more people leaving the ranks of th W2's into the promised land of independent contracting.

  • by Artifakt (700173) on Tuesday September 25, 2007 @01:06PM (#20745507)
    I actually agree strongly with your last point, but this is not really about being independent, if you mean being a corporation all by yourself and handling all the tasks it entails to be one. The problem with that sort of independence is the same as trying to be your own lawyer, civil engineer and dentist, all at once.

    You don't even have to incorporate (in the US at least). You certainly don't have to incorporate just to level the playing field. You can set yourself up as a sole proprietorship, (or if there's more than one involved, a partnership), and you don't have to incorporate at all. You can enter a sole proprietorship pretty much at will (in some states this has the caveat - if you're not a convicted felon), and you can style a partnership any of many ways so that you are getting paid fairly for what you bring to it. You can even limit your liability in a partnership so you can't be left holding the whole bag, without having to create a LLC or S-corp to do it.

    Here's all working for yourself really, absolutely requires.
    1. When you are employed, someone else withholds taxes (both income and social security/medicare). To be self employed, you have to hold these out yourself. If you start making a real lot of money, you have to make advance payments once a quarter, but until you are getting some serious income, you can usually just keep the money in an account and keep the interest for yourself until around April 15th. If you're making more money than will allow that, you can definitely afford someone like me to advise you and file your forms for you. I have clients who can afford my services entirely on the interest they are getting on money they would have never seen at all as employees. What you can't do is expect to keep all the money you wold have been paid as an employee, plus all the extra you should be able to make being your own boss, plus all the taxes you would have paid one way or the other as an employee, plus any money (or time) it costs to learn the basics of record keeping and legal compliance for your particular business.
    2. you need to learn what counts as a business related expense, and what doesn't, what you can claim on an IRS schedule and what you can't. For most people in IT, this means learning a 2 page form (Schedule C), and probably the 1 page form to cover your driving expenses, and maybe the 1 page form for having a home office. The government both prints and PDFs complete instructions for all these and gives them away free on the IRS's website. There's about 40 pages of support manuals for all this, but once you learn the basics, those are not something you have to memorize or even read cover to cover. There are all sorts of additional sections explaining what to do if you are a lobster fisherman or a non-citizen, or both, but if you can't figure out pretty quick that this area doesn't apply to you, then you should be working for somebody else, as a burger flipper (and I've known some burger flippers who picked up on these pretty damned quickly). Most people have to get over their fear that government has hidden something vitally important in a tiny footnote in that section that only applies to commercial fishermen - that really seems to be the biggest obstacle, not intelligence.
    You just may need to learn how to amortize computer related hardware and software, but probably your beginning business model is simpler than that and you can usually forget about doing any amortization - i.e. you can't claim a personal laptop if you use it for various things besides business, and a cheap old one sufficient for most IT needs is small enough you can just claim the whole thing as a straight out expense in a year. Most admin and diagnostic software is free these days unless you are specializing in certain parts of Windows. Starting out in business doesn't have to be very complex, and if it is you probably need to refine your business model.
    Again, this is what I'd claim for a beginning IT, tec
  • by Artifakt (700173) on Tuesday September 25, 2007 @04:34PM (#20748221)
    Your arrangement can be nice, especially where there aren't a lot of physical assets to control compared to the bottom line.
          Just for people who are reading this thread, and now think S-corps are always a great idea, remember any basic corporation can dissolve itself and reform as a S-corp if it meets certain common tests, such as not having more than 100 stockholders, and not having non-citizen stockholders (except for certain trusts and international funds). Since there are many medium sized firms (and a few large ones), that don't issue common stock at all, there are quite a few corps that could convert to s-corps if they found their taxes onerous.(What cayenne8 is calling double taxation - that phrase is a frequent shortcut to describe something more complex, so don't take it without a grain of salt). That they don't switch says they generally like their existing incorporation better than the alternatives, usually (but not always) because of the liability limits.
          Also, where you see the phrase 'reasonable salary' in cayenne8's post, that's not some tax-cheater's code for "whatever I damned well choose" - he's phrasing it just as the IRS does. The government actually looks at these to see if they fall in the range an employee doing that sort of work could normally expect. For executive work, that's pretty broad, and you can low-ball it somewhat, but you can't pay anyone the equivalent of 5 cents/hour just to reduce FICA responsibility.
          One last problem with S-corps - if you start as a partnership or LLC, and convert to an s-corp, what happens if you no longer meet the tests to stay an s-corp? You don't revert back to your old status, but instead you become a regular corporation. This can hit people with a real tax burden if the IRS rules the s-corp became invalid at a prior date, like the date it gained it's 101'st stockholder.
  • by Anonymous Coward on Tuesday September 25, 2007 @04:39PM (#20748285)
    Why not? I'm a salaried employee (in the IT industry, no less!) who also gets paid for any overtime I put in. If I didn't get paid for OT, less would get done. Simple as that.
  • by Anonymous Coward on Tuesday September 25, 2007 @04:49PM (#20748459)
    It was Heron of Alexandria, a Greek, who invented the steam engine.

One man's constant is another man's variable. -- A.J. Perlis

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