Palo Alto, CAIncreasingly, California Quality Assurance (QA) engineers who are salaried and classified as exempt find themselves working around the clock and California QA overtime is just part of the job. QA engineers are typically well-educated and well-paid, yet many of them don't even know they are entitled to overtime compensation. And if they do know, many are afraid of retaliation, particularly in this economic climate.
Some QA engineers, like numerous other computer workers, report that the work they do is not recorded by the company, sometimes as an intentional way to keep them from accruing overtime. Or their employer has misclassified them as exempt from the wage and hour laws, and thus improperly failed to pay overtime.
Ken (not his real name pending a lawsuit) has worked many overtime hours, "but not in my capacity as a QA engineer," he says in an email. He was usually asked to work late evenings on big projects, always time-sensitive. "I was classified as exempt and got paid straight time while all the hourly employees received time and a half. I didn't mind so much because I was happy to be earning anything extra." But at the end of the day, Ken's co-workers were taking home a substantial amount more than him, even though they were performing the same duties.
"I have never brought up the issue because it seemed that QA engineers are usually classified as exempt and I didn't want to bite the hand that feeds me for fear of retribution," says Ken, "and because I'm afraid that will be the end of overtime being offered, at least to me."
Since starting this job, Ken thought it was strange that he was classified as exempt, especially when any time off was "deducted on a minute for minute basis". It sounds like that old adage: having your cake and eating it too—his employer was taking advantage. Ken thinks he is a good candidate for legislation but wants to be certain he has a case because he really fears retribution.
"And I was reluctant to complain given the budget crisis California is experiencing due to the terrible economic situation," Kevin adds. "This is another reason I fear stirring the pot. The current job market is horrible. I am single and live alone and only have my salary to rely on—I don't have any savings. If I were to lose my job and end up on unemployment and unable to find another job immediately, I would not be able to afford my bills and would be terrified to think of what would happen."
Andreas Ramos, co-founder of a Silicon Valley search engine marketing agency and advisor to a number of Silicon Valley startups, says California QA Engineers don't think they are entitled to overtime.
"QA engineers, like countless other people in IT, are working overtime because they are afraid of losing their jobs," says Ramos. "At the same time, IT rates, which are usually $75-$100 per hour, are now about $15 - $20 per hour. And some people aren't asking for overtime because they are glad to be working right now."
If you have been misclassified as exempt and believe you are entitled to overtime compensation, you are probably debating the pros and cons of filing a claim. Labor attorney Jose Garay calls it "Risk Reward".
To determine whether or not you should file a claim, Garay advises that you ask yourself the following questions: If you work 70 hours per week and you have a contract that requires travel time, are you being paid for travel? Are you being reimbursed for expenses? What is the value of that salary if the position is stagnant? And ask yourself this: if there is no true growth opportunity, the grass is likely greener…
Garay says that if you do a simple calculation, you may find that non-professionals actually make more per hour. You take 1/40th of your weekly salary and divide it by all the hours you work: regular time, overtime, travel time, standby time, work from home, remote access work, training, etc. He says most of his clients are shocked to learn that, especially in IT, they are often making less than $20 per hour.
As for retaliation, Garay has represented many employees working at very large tech companies who filed overtime and other labor violation claims. He says after the lawsuits were settled, those employees were treated much better and he has never had a client who suffered retaliation. Perhaps you may want to file that overtime claim after all…