The 50 percent of you who don't cite politics as your No. 1 pet peeve should count your blessings. Here's a letter from an IT employee at a not-for-profit received by Network Computing's Career Coach, Lorna Garey. Only names have been changed to protect the innocent and tormented reader.
Dear Career Coach,
Our executive VP retired this past spring and was replaced by a bean counter. Shortly thereafter, it was announced that the work week would be changed to 37.5 hours from 35 hours. Nonexempt folks maintained their hourly rate, so the change meant more time and more money. Exempt folks were to "eat it." They were, however, to gain an additional personal day, and travel time and weekend work would be granted comp time 1:1; it had been two work days per comp day and no consideration for travel.
New employee handbooks were printed, distributed and signed for, complete with a disclaimer that these rules do not form a contract. But we know what happens when you don't follow the rules.
Being in a support role, most of us in IT were used to working whatever hours it took to get the job done, and, when things were going good, working 30 to 35 hours per week. But we felt that, with the consideration of comp time, this was a fair deal.
Also, before the regime change, we had had liberal flex time benefits. The helpdesk, in fact, was experimenting with four-day weeks. Being the Dilberts we are, we soon figured out that if we alternated taking off Fridays and Mondays we could have four-day weekends. Of course, we always made sure that there was adequate coverage.
That must have sounded like we were having too much fun, so word came down from our director that this practice was verboten. We could take off one day every other week, but no extended weekends, and the schedule for one week had to be the same as the next. In fact, to impress the new head honcho (I suspect), we were to work at least 40 hours. Our boss then went one better and said we had to work at least 41 hours! To top it off, in his announcement, he justified this by saying that, after all, we were all paid more than other employees.
It gets even weirder. We all know that events come up for which we need to take time off. But if we took a personal day, we would then owe the place one hour for that day (because these 40-hour personal days no longer equal a 41-hour work day).
Now, we're professionals, so an hour here or an hour there doesn't bother anyone. But it's the principal of the thing, not to mention being treated like teenagers, that is so irritating. And the further down the chain of command, the more rules are tacked on.
I suspect that the new top guy doesn't know about this, at least, not all of it. And I suspect HR doesn't know either, but even if it did, HR is in no position to make waves: A new VP, hired from the outside, will soon be in charge there as well.
So what can we do? Grin and bear it? The job market is tight--and the execs know this--so we're stuck.
To add insult to injury, I heard that some supervisors at GE were to get paid overtime, even though they are exempt, because they were treated unfairly and forced to work overtime.
Sincerely, Mr. 41
Here's is Career Coach's response:
Dear Mr. 41,
I referred your question to Martin Ebel, a management-side labor and employment attorney with Boston firm Shepherd & Ebel, LLP. His response follows:
This question poses a number of interesting legal issues. This answer will focus on the questions revolving around overtime, comp time and exempt and nonexempt status. I can't offer much guidance on flex time and personal-leave issues because these are areas where the employer has great latitude and these issues are impacted dramatically by local laws.
The first issue to address is whether the people this policy affects are considered exempt or nonexempt by the Department of Labor. The classification is important because it regulates whether an employee is entitled to compensation for overtime. Under the Fair Labor Standards Act (FLSA), a nonexempt employee must be paid for every hour worked over 40 in a given week -- even if the person is paid a salary. Additionally, it is illegal under FLSA to merely give a nonexempt employee comp time (at any rate) in exchange for overtime wages. Therefore, the policy as it applies to nonexempt employees violates the FLSA.
If an employer violates FLSA, it is liable for the overtime the employee was not paid. If the employee is a salaried employee, the overtime pay is (usually) equal to a prorated portion of the employeeÕs salary. If the employee is an inside salesperson and earns commission, the commissions earned during the period are included in the pro rating! Employees who are paid hourly must receive 1-1/2 times their normal hourly rate for hours over 40 in any given seven day period. Additionally, FLSA authorizes payment to the employee of additional damages, in an amount equal to the unpaid overtime, to penalize the employer. Finally, the statute provides for payment of attorney fees to successful employees.
The United States Supreme Court has held that employees may not waive their rights under FLSA without the permission of the Department of Labor or their stateÕs Attorney General. This means that even if a nonexempt employee signs a release or an agreement to take comp time in lieu of overtime pay, the employee can still collect for the overtime and the damages and attorney fees under FLSA.
Determining whether an employee is exempt or nonexempt is complex. In the computer industry it is a little easier, because there is some guidance. It is important to note that while the usual practice for most businesses is to classify everyone as exempt, the government will presume that each employee is nonexempt, unless the employer proves otherwise.
There are three basic types of exemptions: professionals, administrators and executives.
Most IT people do not fit into any category except professional. The category for administrators is particularly misleading, because virtually no one (not even administrators or administrative assistants) seems to fit the category. If an IT person is truly an executive, then he or she is making the policies we are discussing and therefore exempt.
Highly skilled IT people are classified as professionals and therefore exempt under FLSA.
To qualify as a professional, an IT employee must earn more than 6-1/2 times the current federal minimum wage (as of today, $5.15 x 6.5 = $33.48 per hour). To qualify for this exemption they must be "highly skilled employees who have achieved a level of proficiency in the theoretical and practical application of a body of highly specialized knowledge in computer system analysis, programming, and software engineering." Depending on the nature of the job, this may (and then again, it may not) include a person on the helpdesk.
Entry-level employees, trainees and employees engaged in repairing or providing maintenance of computer hardware and related equipment can never meet this test and will still be considered nonexempt. Employees whose work is simply highly dependent on or facilitated by the use of computers and software also do not qualify as exempt.
The bottom line is that employees who are correctly classified as exempt will not have any real recourse other than to grin and bear these schedule policies. But if the classification for some or all of the salaried employees is incorrect, then those employees certainly do not have to take it. They may make a FLSA claim to recover unpaid overtime for the preceding three years. Significantly, FLSA also provides an antiretaliation provision. Employers are forbidden from firing or otherwise disciplining or adversely affecting the employment conditions of employees who have exercised their rights under the law.
Finally, the exempt employees are entitled to their overtime pay (including time for travel), even if they have been compensated with comp time. The lesson is that FLSA is a minefield for employers and a regular review of employment practices by a specialist is always a good idea.
If you want to commiserate or think you can beat this tale of woe, let us know at careercoach@nwc.com.
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