An indentured servant is someone who is contracted to work for an employer for a number of years in exchange for passage and accommodation. This term was coined in the 17 & 18th century and directed toward immigrants. In 2013, indentured servants are not just software engineering loyal to an organization providing VISA sponsorship, accommodations, and career prospects in the United States… – but it also includes technology start-ups, solution providers, and “promise land” company that expect overtime and “over the top” dedication in exchange for passage to the “next BIG thing” that will provide residual income, unlimited prosperity, and accommodations that include dry cleaning service, on-site washers/dryers, gym, cafeteria, windshield repair and oil change while you’re at work, along with a heart for the tin man and courage for the lion.
There have been some significant court cases that software engineers need to be aware of – specifically about overtime and abuse of the “exempt” employment status. Just mention the “Microsoft contractor lawsuit” – and every human resources and recruiting professional should react like mentioning “he who should not be named” at a Harry Potter convention !!!
If you’re a software engineer who feels that they are being abused (regarding overtime and job classification) – here are some URLs you should check out:
CALIFORNIA WAGE & HOUR CLASS ACTION ATTORNEYS -Recent Results in Cases Involving Hi-Tech Employees http://www.carterlawfirm.net/recent-results-in-cases-involving-hi-tech-employees/
- Defendant Cisco $20,000,000
In September of 2007, Plaintiff filed a Complaint against Cisco, a worldwide manufacturer and provider of information technology services that employs several “engineers” that were allegedly classified as “salary exempt” irrespective of their duties or daily tasks. This wage and hour case sought the recovery of unpaid overtime compensation. The named Plaintiff, who sued on his own behalf and on behalf of others similarly situated, alleged that he (a Level II and Level III software engineer, employed with Cisco from 1999 to 2006), and the putative class, were misclassified as exempt from overtime pay. The Complaint alleged that the members of the class were not paid overtime compensation to which they were entitled under California law for work performed in excess of 8 hours per day or 40 hours per week. The suit also alleged that the class members were not provided meal periods and rest periods in compliance with California laws. Other alleged violations included Cisco’s failure to timely pay all amounts owed to Cisco’s employees at the time of their termination, and Cisco’s failure to provide accurate itemized wage statements. Finally, the Complaint alleged that Cisco also violated California’s Unfair Business Practices Act, codified at California Business & Professions Code § 17200.
Cisco agreed to pay $20 million in settlement of this matter.
- Defendant VMware $6,500,000
In September of 2007, Plaintiff filed a Complaint against former employer, VMware. VMware is a worldwide IT products distributor that employs several “engineers” that were misclassified as “salary exempt” irrespective of their duties or daily tasks. The Plaintiff brought this action on behalf of himself (a QA engineer) and all employees who worked for VMware in California as software engineers, test engineers, systems administrators, QA engineers (platform solutions – automation engineer and manual testing), and QA 2 engineers (platform solutions – manual testing). As in the Cisco case, this case also sought recovery of unpaid overtime compensation. The Complaint also alleged violations of the applicable rest and meal period laws, and VMware’s failure to provide accurate itemized wage statements. Plaintiff also sought compensatory damages and restitution under California Unfair Business Practices Act, California Business & Professions Code § 17200. Penalties were also sought under the Labor Code.
VMware agreed to pay $6.5 million in settlement of this matter.
- Defendant DST Output $1,250,000
In July of 2008, Plaintiff filed a Complaint against DST Output, a leading provider of paper and electronic documents for customer communications, on behalf of himself and all others similarly situated. The plaintiff alleged unpaid wages (Fair Labor Standards Act of 1938), meal or rest periods not provided per applicable law, unpaid meal or rest period premiums per applicable law, failure to provide itemized statements, failure to pay all wages due and owing upon termination of employment, unfair business practices or unfair competition; and/or Civil penalties under the Private Attorney General Act of 2004.
DST Output agreed to pay $1.25 million in settlement of this matter.
California Quality Assurance Engineer Overtime: http://www.lawyersandsettlements.com/lawsuit/california-quality-assurance-engineer-overtime.html
- If you are a QA engineer and you perform many automated and repetitive duties, there is a strong chance that you are owed overtime in California, regardless of your quality assurance engineer pay or title–either salary or hourly wages. However, there is a caveat: If you are paid on an hourly basis, California has a minimum rate that must be paid for every hour you work.
Forbes: Employee Misclassifications Continued: Exempt vs. Non-Exempt: http://www.forbes.com/sites/burtongoldfield/2011/04/08/employee-misclassifications-continued-exempt-vs-non-exempt/
- Although the rules are clear, the difference between exempt and non-exempt positions can be confusing. The longer you wait to reclassify your employees the more expensive it may be. Just ask Levi Strauss. Levi Strauss is in the news this week after agreeing to pay more than $1 million in back wages to a group of employees it misclassified as exempt from overtime compensation.
USA Today: More American workers sue employers for overtime pay: http://usatoday30.usatoday.com/money/jobcenter/workplace/story/2012-04-15/workers-sue-unpaid-overtime/54301774/1
- Under the FLSA, employees are entitled to overtime unless they’re executives who manage and hire and fire employees; administrators who make key decisions; or professionals — such as lawyers and engineers — with advanced degrees, among other criteria. Also exempt are certain information technology workers and sales representatives whose hours can’t easily be tracked. Employees must earn at least $455 a week to be exempt. While all hourly employees are entitled to overtime, salaried workers may also qualify if they don’t fall under any of the exemptions.
Interviewed and URLs contributed by:
Marc H. Phelps│The Phelps Law Group│2030 Main Street, Suite 1300, Irvine, CA 92614│Ph: (949) 260-4735│Fax: (949) 260-4754