Increasingly, overtime lawsuits are being filed against companies and some have been settled. For instance, Siebel Systems has agreed to pay $27.5 million to about 800 software engineers, and IBM is coughing up $65 million to technical and customer support workers.A quick google of quality assurance engineer jobs posted on the Internet found the following tagged onto the job descriptions:
- You will work long hours (possibly some over time up to 10:00 PM);
- Must be willing to work overtime (Aerotek);
- Ability to work overtime as necessary on evenings and weekends (a mobile game company);
- Must be able to work overtime (Net Temps);
- Must be able to work overtime often (Interplace); and
- Willing to work overtime when requested.
Chances are, these positions are salaried. And chances are, the positions are non-exempt, which means you are entitled to overtime. (Conversely, exempt means you are not entitled to overtime.)
One QA engineer writes: " In addition to my paid 40 hours per week, and up to 15 hours per week of unpaid commute, in this business I have to work an additional 25 hours per week so that I can market myself, update my website and catch up on technology. All of this is overtime which is (and remains) owed to me. I've never received any compensation for any of this overtime work."
According to the California Labor Code §515.5 (below), the following--a typical QA engineer job description posted by Yahoo--should be non-exempt and it will only be exempt if it meets the salary requirement of $37.94 hourly rate or salary ( based on a 40-80 hour work week) of the minimum monthly and annual exemptions at $6,587.50 and $79,050.00, respectively:
"You will contribute to the design and implementation of test plans, test cases and validation, by creating and using test tools of complex, multi-tier software. You will also interface with other QA engineers, developers, product managers and operations teams to complete projects. You should possess skills in testing and implementing tests on components written in C++/Perl as well as testing API-based web applications. The ideal candidate should have a proven history and dedication to SQA processes, particularly Agile / Scrum testing and implementation."
If this job description sounds familiar, you are likely entitled to overtime. You should contact a lawyer to find out if you have been misclassified as exempt; if so, you may be entitled to significant overtime depending on your quality assurance engineer pay and how many hours you worked.
California Labor Code §515.5
(a) Except as provided in subdivision (b), an employee in the computer software field shall be exempt from the requirement that an overtime rate of compensation be paid pursuant to Section 510 if all of the following apply:
(1) The employee is primarily engaged in work that is intellectual or creative and that requires the exercise of discretion and independent judgment, and the employee is primarily engaged in duties that consist of one or more of the following:
(A) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications.
(B) The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to, user or system design specifications.
(C) The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems.
(2) 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.
(3) The employee's hourly rate of pay is not less than forty-one dollars ($41.00) thirty-six dollars ($36.00), or the annualized full-time salary equivalent of that rate, provided that all other requirements of this section are met and that in each workweek the employee receives not less than thirty-six dollars ($36.00) per hour worked. The Division of Labor Statistics and Research shall adjust this pay rate on October 1 of each year to be effective on January 1 of the following year by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers.[The strike out text refers to pre-2008 law]
(b) The exemption provided in subdivision (a) does not apply to an employee if any of the following apply:
(1) The employee is a trainee or employee in an entry-level position who is learning to become proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering.
(2) The employee is in a computer-related occupation but has not attained the level of skill and expertise necessary to work independently and without close supervision.
(3) The employee is engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment.
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(5) 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 onscreen 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.
(6) The employee is engaged in any of the activities set forth in subdivision (a) for the purpose of creating imagery for effects used in the motion picture, television, or theatrical industry.