I work as a W2 contractor for a contracting agency as a network engineer. I'm on a long term assignment at a large telco carrier as tier 1 network support. My contracting house apparently has classified me as exempt. I get paid straight time for anything over 80hrs in a 2 week timeframe. Work schedule is 4 11 hour nights with 1 hr of unpaid "lunch" per evening. Since this is an evening shift -- most lunches are still worked at the desk since there's no where to go at midnight.

Some contractors doing the same job receive time and a half for anything over 80 hrs. This may simply be a function of hourly rate -- anything less than $27.63/hr is non-exempt -- anything more is exempt. This is a call center type environment though where there is very little independent judgement exercised. Is this the type of job which is exempt under either Administrative or Computer Professional defined exemptions?

You're going to have to give us a definition of your duties. The length of your shift, the shift itself, your job title and where you eat your lunch have nothing to do with exempt status, and that's really all you've told us.

BTW, if you are exempt, then the fact that you are getting straight time over 80 hours means that you are getting more than the law requires. There are no circumstances whatsoever under which an exempt employee is required by law to be paid a single penny over and above their regular salary.

I'm a contractor and am paid hourly -- I'm not aware of any contractors who are salaried. The position is that of a network engineer requiring at least a CCNA certification. The job is responding to HPOV alarms, creating tickets based on the alarms, investigating the alarms, and making calls to other entities to report status and resolve said alarms. This requires some basic cisco router command skills but is not a technically demanding job.

There are also the occasional call-ins reporting problems not seen by the HPOV system. The job is mainly creating and working trouble tickets. The client has clearly defined processes in place so there's little room for independent judgement. I work for the contracting agency though and not their client. I tend to think that the work involved would fall under non-exempt status but the contracting agency must think otherwise.

I would say Non-Exempt, not that the government cares about anyone's opinion but their own. You might find the following of use.

http://www.dol.gov/esa/whd/opinion/FLSA/2006/2006_10_26_42_FLSA.pdf

If you feel you have been misclassified (and I agree that you very well may have been), you can file a claim with the state Dept. of Labor for the unpaid overtime premium.

BTW, it's not exactly true that a computer professional (who meets the criteria) and is paid less than $27.63 per hour is necessarily nonexempt. The exception just means that an employee who DOES meet the criteria can be paid on an hourly basis (at that rate or higher) instead of being paid a guaranteed weekly salary of at least $455 per week.

Thank you for the information. I'm virtually certain now that I've been misclassified as exempt. It's not that big of deal for me since I've not worked that much overtime but still may pursue a claim with the Dept of Labor when this contract ends. Some of my coworkers however have worked a lot of overtime as straight time.

Some of these contract agencies really are going too far. They end up taking more per hour than what the contractor is actually making and then play games with the overtime when I'm sure they know very well that the position they filled would be considered non-exempt. They just gamble that most people won't contest it.

I'm not going to defend a misclassification or any other failure to comply with wage and hour laws by any employer, but I will say that staffing agencies ARE in the business to make a profit. The reputable ones do so by charging the client a higher rate than the worker is making to cover employer taxes, worker's comp, liability insurance, sometimes medical insurance and other benefits, overhead, AND make a profit. So it's not like they could charge the client the same rate they are paying the worker; they'd be out of business in a flash.

Some of the other contractors doing the same thing that I do working for the same client but other agencies are actually making less per hour than what the agency is off from them. I simply think that the person doing the actual work should always get paid at least 51% of the bill rate.

The agency doesn't need to make more than the worker they placed to make a profit. That's pure greed.

Some of the other contractors doing the same thing that I do working for the same client but other agencies are actually making less per hour than what the agency is off from them. I simply think that the person doing the actual work should always get paid at least 51% of the bill rate.

The agency doesn't need to make more than the worker they placed to make a profit. That's pure greed.

What you "think" is irrelevant. If the agency doesn't bill the client for more than they are paying the worker, how do you think they're going to pay all the employer taxes and other things I mentioned earlier? Where do you think the "profit" is going to come from? :confused:

I'm not sure why you're not getting this... The client is paying something like $60/hr. The agency is then paying the person actually doing the work something like $25. Of course the agency is billing the client more than they're paying the worker but the worker shouldn't be making less than the agency on a deal like this.

Agency: $35/hr
Contractor: $25/hr
==============
Client bill rate: $60/hr.

Taking over 50% of bill rate for the agency's cut is not just trying to make a profit -- it's just wrong and is pure greed.

I'm not sure why you're not getting this.

Out of the $35 the agency pays employment taxes, workers compensation, benefits, phone bills for the calls to place you, stationary for the letters to support you, and all the other costs associated with getting you into the job. It's not $35 of pure profit.

That's gross for the poor working sap too. He then has state/fed/payroll taxes. There's no legal question here. They have the right to take whatever they can get away with but I consider the practice of earning more off the contractor's work than they are morally repugnant. It will not happen on my contracts.

It will not happen on my contracts.

Don't count on it.