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On-call and forced to travel while classified as exempt California

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  • On-call and forced to travel while classified as exempt California

    it has come to my attention that my company may be violating California and Federal laws regarding exempt/non-exempt status. I am in the training and support division and we are classified as salaried exempt.

    My division and job description involve support and training with no time spent performing managerial duties. I believe several people in my department fall into the non-exempt category. I've been here 15 months doing this work:

    1. 24/7 support every other week - compensated $22 a day beyond normal salary. Calls ring through to my cell phone after 5:30 pm and until 9 am. I am required to answer, log the call online and assist the customer.

    2. Flying to customers for installs or training for weeks at a time - I traveled 17 days in March for work alone for example and tend to be on-site (away from San Diego, overnight) at customers' sites 5 days of each month.

    By my estimates, conservative, I'd say in an average month I'm on-call at least an extra 160 hours a month. Two field engineers travel at least 2 solid weeks a month. They've been around 9-12 months.

    I'm guessing I can get the others interested quite easily if there is a case: one coworker knows about this law too.

    Additionally, HR, the company lawyer and our COO know they are violating the law. They chose to ignore the law and classify our jobs as exempt according to my source. My source was a party to these talks. The COO said nobody would ever find out.

    Is there much of a case here?
    Last edited by bgdc; 09-18-2006, 10:58 PM.

  • #2
    It is not unusual for such "consultants" to be properly classified as exempt. The requirement for managing other employees applies only to the Executive exemption. I would check the Administrative exemption here:
    http://www.dir.ca.gov/IWC/IWCArticle4.pdf
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

    Comment


    • #3
      Originally posted by Pattymd
      It is not unusual for such "consultants" to be properly classified as exempt. The requirement for managing other employees applies only to the Executive exemption. I would check the Administrative exemption here:
      http://www.dir.ca.gov/IWC/IWCArticle4.pdf
      Well, I know from the supervisor of the department that HR, the COO, the supervisor of the deperartment and the company lawyer discussed this issue and the company lawyer, HR and supervisor all agreed the positions were mis- classified as exempt. The COO reportedly agreed but then said nobody would ever find out, so they were not going to pay us OT in any manner.

      I looked over the link you provided. We miss the criteria for executive and administrative easily. And only one spot in professional might apply:

      (h) Except, as provided in subparagraph (i), an employee in the software field who is paid on an hourly basis shall be exempt, if all of the following apply:
      We're paid salary.

      (i) The employee is primarily engaged in work that is intellectual or creative and that requires the exercise of discretion and independent judgment.
      Nope.

      (iii) The employee is highly skilled and is proficient in
      the theoretical and practical application of highly
      specialized information to computer systems analysis,
      programming, and software engineering. A job title
      shall not be determinative of the applicability of this
      exemption.
      Open to debate but we'll say it applies.

      (iv) The employee's hourly rate of pay is not less than
      forty-seven dollars and eighty-one cents ($47.81).
      Not even close - so no, this does not apply and therefore we cannot be declared professional exempt as all must apply according to paragraph (h).

      (i) The exemption provided in subparagraph (h) does not apply to an employee if any of the following apply:

      (iii) The employee is engaged in the operation of computers or in
      the manufacture, repair, or maintenance of computer hardware and
      related equipment.
      We perform all these duties; thus according to paragraph (I) the exemption does not apply.

      (v) The employee is a writer engaged in writing material, including
      box labels, product descriptions, documentation, promotional
      material, setup and installation instructions, and other similar
      written information, either for print or for on screen media or who
      writes or provides content material intended to be read by
      customers, subscribers, or visitors to computer-related media such
      as the World Wide Web or CD-ROMs.
      We do this too. We create manuals, online documentation, FAQs, perform online training all for online distribution. So according to paragraph (I) the exemption does not apply.

      Comment


      • #4
        The most likely exemption for you would be the administrative. Do you help your employer's clients run their businesses? You might want to consult an attorney about this.

        Keep in mind that even if you are non-exempt, the company does not have to pay you for being on call- they just have to pay you for the time you actually spend answering the calls.

        Likewise, the time you spend actually travelling is compensable (like time on the plane) but not every hour that you are out of town.
        Megan E. Ross, Esq.
        Law Offices of Michael Tracy
        http://www.gotovertime.com

        Disclaimer: The above response is a general statement of the law and should not be relied upon as legal advice. It only assumes the facts that are stated in the message. The above response does not serve to form an attorney-client relationship.

        Comment


        • #5
          Originally posted by Megan Ross Hutchins
          The most likely exemption for you would be the administrative. Do you help your employer's clients run their businesses? You might want to consult an attorney about this.

          Keep in mind that even if you are non-exempt, the company does not have to pay you for being on call- they just have to pay you for the time you actually spend answering the calls.

          Likewise, the time you spend actually travelling is compensable (like time on the plane) but not every hour that you are out of town.
          Thanks. I have the names of several attorneys. We (fellow) employees were hoping to avoid suing. Then again, that this was willful, this isn't simply an oversight and we're sure the COO would sooner ignore our requests for just compensation...

          A typical trip usually involves travelling all day - well beyond 8 hours, working 3 days in a row for 12-16 hours each day and then coming back. One employee was sent out on Memorial Day, spent 7 days straight working and they're about to send her out this Friday for a 10 day stint at three locations. She's looking at 12-16 hour days for 8 days straight!

          Quite simply the COO told HR, the lawyer and our supervisor, he won't pay OT to us as it's too expensive.

          Sad that companies so willfully abuse employees this way. And yes, the supervisor commented on a willingness to cooperate with an investigation.

          Comment


          • #6
            A few points: The law you quote about being paid on an hourly basis has been amended to allow payment on a salary basis. The Wage Orders have not been updated to relect this. In any case, the Computer Professioal exemption likely does not apply to you anyway, so it is not really relevant.

            In terms of why companies willfully violate the overtime laws, the answer is simple. The company can deny overtime to its entire staff and then when a few employees complain, they will just offer them some settlement that is a fraction of what they are owed. The employees accept because they want to avoid a lawsuit. So, the company doesn't pay 90% of its staff overtime and it pays 10% of its staff 50% of the overtime that is due. From a COO's standpoint, this is called smart business.

            Compaines just aren't worried about it unless you are going to sue them. So, if you go into talk to them without an attorney, they know you aren't going to sue them. If you threaten them with going to the "labor board," it is even better for them. Employers love the labor board -- there is no possibility of "double damages" awards, no possibility of civil penalties, no possibility of a class action, no possibility to go back 4 years for any of the employees, and no possibility that they will have to pay your attorney fees.

            There was even one employer's defense firm that wrote a paper to their clients on this subject. Basically, it said computer employees are too timid to actually sue. Therefore offer then a small fraction of what is due and they will think they are getting a great windfall.
            Michael Tracy
            Attorney
            http://www.laborlawradio.com

            Disclaimer: The above response is a general statement of the law and should not be relied upon as legal advice. It only assumes the facts that are stated in the message. The above response does not serve to form an attorney-client relationship.

            Comment


            • #7
              MTracy thanks

              Yeah, my family is mostly made up of attorneys (criminal), so they're all pushing for me to sue as they are upset the COO is so willing to disregard the law.

              I'm looking into switching jobs soon, so I think I'll go forward with the suit once I've secured a new position elsewhere. No reason for me to make my life while working here...

              Comment

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