Our IT director had a meeting with us and said we were expected to work up to 60 hours a week. I worked there for one year because it took a while to find another job. I didn't ever bring up overtime; I was afraid of losing my job. When your director tells you what to do, you basically have to do it." And most of his co-workers were in the same boat—classified as exempt.
"I am misclassified as exempt because I don't manage anyone," says Wells. "After a year I quit because of the long hours and no overtime; my salary was $47K per year and I figure that with the amount of hours I put in, I was making less than $15 per hour."Compare that rate to a contractor, performing basically the same work as Wells. "The contractors are paid hourly and they aren't allowed to work overtime but they get paid
$80 per hour: that is about $100,000 per year. As a contractor, you don't have benefits, vacation or sick time but in the long run, it pays off. I have a family and it would be great to spend some time with them.
"That's why I started looking for another job right away.
My job with this new company is better but not perfect. When they hired me, one of the things that sealed the deal was that I wouldn't have to work long hours. But the long hours are creeping up and I usually work more than 50 hours a week.
I would have preferred to be classified as a contractor and in my next job, I will definitely be a contractor.
IT employers don't care. We need the work and if you complain, they threaten you with outsourcing or being laid off. I know retaliation is against the law but it's a veiled threat. I mentioned to my manager that I was sick and tired of so much overtime but he replied, 'As a matter of fact, we are thinking of outsourcing.'
My job now is not great. I have no idea why they can classify us as exempt when I am not in a managerial position. Nobody is under me. From my understanding, if you make over a certain amount—I think over $30,000 per year and it requires a BA, and someone reports to you, they can classify you as exempt.
I have only worked for two companies and both have this exempt policy which leads me to believe that other companies do the same. And I have read online that many people have these same issues.
I haven't actually sat down and figured out how much I am owed in overtime, but it is substantial. It is really unfair that people in IT are in this position and I don't know what we can do about it. Well, we can join a class action lawsuit. We can't sue our current employer because I am pretty sure we will get fired. We always talk about this problem (there are about 10 or 15 co-workers in the same situation) and the solution is usually just to move on to another job, hoping it will be better: shorter hours or paid hourly."
Many employers pay a salary to IT workers and believe they are not entitled to overtime, no matter how many hours they work. However, most IT workers are entitled to overtime, even when paid on a salary basis. In Wells' case, his job description as operations analyst is classified as exempt as long as it meets (or doesn't meet) certain criteria.
If you spend most of your time doing any combination of the following, you are entitled to overtime:
- Analyzing, troubleshooting, and resolving complex problems with business applications, networking, and hardware.
- Installing, configuring, or testing new computers, applications, networks or hardware based on user-defined requirements.
- Creating or troubleshooting network accounts (logins) and other business application user accounts.
The US Department of Labor states the following under the Fair Labor Standards Act (FLSA):
Computer Employee Exemption
Computer systems analysts, computer programmers, software engineers, and other similarly skilled workers in the computer field who meet certain tests regarding their job duties are eligible for exemption from both minimum wage and overtime pay as professionals under FLSA sections 13(a)(1) and 13(a)(17). See 29 C.F.R. § 541.400(a). To qualify for the computer employee exemption, the employee must be compensated on either a salary or fee basis at a rate of not less than $455 per week or, in the case of an employee who is compensated on an hourly basis, not less than $27.63 an hour.
In addition, "the exemptions apply only to computer employees whose primary duty consists of":
- The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;
- 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;
- The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or
- A combination of the aforementioned duties, the performance of which requires the same level of skills.
To qualify for exemption under this part, an employee's "primary duty" must be the performance of exempt work. The term "primary duty" means the principal, main, major or most important duty that the employee performs. Determination of an employee's primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee's job as a whole.
Section 541.400(a) lists employees who qualify for this exemption as including computer systems analysts, computer programmers, software engineers, and other similarly skilled workers in the computer field. As explained in the preamble to the final rule, such job titles alone, however, are not the determining factor for exemption.