Consulting/contracting as an exempt

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oT,

"In your experience, do the extra hours vs. total hours factor in here? For the sake of discussion, what if it was 30 extra hours over 1 week?"

Yes, that matters. BTW, I'm assuming that your "extra" hours were based on a 40-hour normal week. So, putting in 50-55 hours in a week is not something I'd expect any extra for as a salaried employee. That just goes with the territory. Putting 70 hours in when a normal workweek is 40-50 hours is a different story and I'd expect some sort of bonus or time off or whatever.

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I agree with this.

The chronology was:

Week 1, slightly heavy, toward the end of the week, PM tells us the next week is going to be big, track your hours (just under 60).

Week 2, Nutso, half-day Sunday, almost full day Saturday (70).

Week 3, Hand-holding the last two days. Also, the trip was initially supposed to be one week, then got pushed to two weeks, then got pushed to include the last two days.

[censored]. It was 50 hours in 2.5 weeks. Maybe I'm being penalized or sucking at math. [img]/images/graemlins/crazy.gif[/img] Anyway, thanks again all for the discussion. I'm going to start looking for a new job...

[El Diablo]

BT,

"The consulting company is certainly going to bill the customer for the additional hours.

How is this just a windfall for the consulting company?

This is why it is such a grey area."

I really don't understand what you are talking about here.

You sound like you are talking about contractor type work where people are compensated on some sort of hours-based billing w/ hourly rates.

When working in professional consulting, accounting, legal, and other fields, it is not unusual for salaried employees to bill more than 40 hours in a week at rates that are far higher than their salary.

The "windfall" to the consulting company goes to their profits, which go to their shareholders or partners, which is why there's this whole striving to make partner rat race mentality, since that's where all the money goes.

There is really no grey area at all. This is how it goes. As I mentioned, there are often bonuses or other compensation for extraordinary efforts, but billing out a lot more $$$ than what you get paid is just a standard part of this career track.

[By-Tor]

The grey area imo is with regards to "Computer Consultants", which is a term that gets tossed around in the industry like a kids toys.

I have personally never been listed as anything but 'exempt', but have always been compensated for scheduled overtime. A trip overseas would certainly fall into this category imo.

There are very few positions in the computer industry, especially in a consulting and/or support role, that would pass the test of being an 'exempt' role. Salary != Exempt even if inexperienced HR rep's categorize it as such.

Without knowing more about it, on the surface, the OP's position does not sound like a managed service wherein the consulting company is charging x-amount of dollars, flat-rate, for a specific service. It sounds much more like every other contract computer support position I have come across where the consulting firm is providing a body at x-amount/hour.

If that is the case, the OP is certianly due time and a half for this scheduled overtime and if challenged with the CA Labor Board, I am just about positive that this would be the case.

Very few ever do this of course due to the fact that it is not exactely great for the relationship with your consulting company, and luckily, I have never had to, but I do know a handful of people who have and the outcome was always in their favor.

[El Diablo]

BT,

OK, that's what I thought. What you're talking about is body-shop contractor type stuff. What I'm talking about is professional services firms. Both charge clients by billing people by the hour, but they are very different types of companies.

[offTopic]

[ QUOTE ]
OK, that's what I thought. What you're talking about is body-shop contractor type stuff. What I'm talking about is professional services firms. Both charge clients by billing people by the hour, but they are very different types of companies.

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Yeah, I think this is supposed to me more like the latter.

The idea is the company is supposed to be more like EDS than some staffing agency, although it is still very small.

The root of the problem, as I see it, is the lack of a clearly stated policy + poor communication regarding what is being done to develop a policy. Ah well.

[By-Tor]

I'm not sure that I am agrueing my point very effectively.

My main point is that is does not really matter who or what the company is or thinks they are, exceptions to California's overtime laws are clearly defined based on the work being perfomed and more so on the level of expertise required to perform such a role.

Clicking on exemptions pertaining to 'Professional' roles, we find that the in order to qualify for exemption from overtime laws, the employee must meet the following:


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professional exemption

A person employed in a professional capacity means any employee who meets all of the following requirements:

1. Who is licensed or certified by the State of California and is primarily engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting, or

2. Who is primarily engaged in an occupation commonly recognized as a learned or artistic profession. "Learned or artistic profession" means an employee who is primarily engaged in the performance of:

1. Work requiring knowledge of an advance type in a field or science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes, or work that is an essential part of or necessarily incident to any of the above work; or

2. Work that is original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee or work that is an essential part of or necessarily incident to any of the above work; and

3. Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time.

3. Who customarily and regularly exercised discretion an independent judgment in the performance of duties set forth above.

4. Who earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment. Full-time employment means 40 hours per week as defined in Labor Code Section 515(c).


Regarding the requirement for the exemption to apply that the employee "customarily and regularly exercises discretion and independent judgment," this phrase means the comparison and evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered. The employee must have the authority or power to make an independent choice, free from immediate direction or supervision and with respect to matters of significance.

For the learned professions, an advanced academic degree (above the bachelor level) is a standard prerequisite.

For the artistic professions, work in a "recognized field of artistic endeavor" includes such fields as music, writing, the theater, and the plastic and graphic arts.

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Also note that when applied specifically to the Computer Software field, the labor code specifically lists functions which do not qualify for exemption status, one of which being:


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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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The easiest way I know to describe being qualified for an exeption from the overtime law is if nobody else can easily perform your tasks without formal education and in the computer industry, these positions are few and far between.

[El Diablo]

BT,

There are plenty of other exemptions from overtime law.

For example, most salaried workers making over $100,000 per year are exempt.

Here are more exemptions for computer jobs:

http://www.dir.ca.gov/dlse/Glossary.asp?Button1=E

"employee in the computer software field

Except as provided below in paragraph 5, an employee in the computer software field who is paid on an hourly basis shall be exempt under the professional exemption, if all of the following apply:

1.

The employee is primarily engaged in work that is intellectual or creative and requires the exercise of discretion and independent judgment.
2.

The employee is primarily engaged in duties that consist of one or more of the following:
* 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 documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems.

3.

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 the exemption.
4.

The employee’s hourly rate of pay is not less than $41.00 [the rate in effect on September 19, 2000]. 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. Click here for adjusted rate information (pdf) (doc).
5.

The exemption described above 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.
4. The employee is an engineer, drafter, machinist, or other professional whose work is highly dependent upon or facilitated by the use of computers and computer software programs and who is skilled in computer-aided design software, including CAD/CAM, but who is not in a computer systems analysis or programming occupation.
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 nos. 1 through 4 above for the purpose of creating imagery for effect used in the motion picture, television, or theatrical industry."

[offTopic]

Ai ya...scheduled for another trip in two weeks. If we get into a similar situation, I am tempted to just submit 40 hrs every week (of course, I won't, unprofessional, yadda yadda doormat yadda yadda). [img]/images/graemlins/mad.gif[/img]

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Update:
One of the other consultants on the trip didn't get paid for the OT as a result of a billing problem which led the customer to ask me if I had been paid for the OT. I said that I hadn't and explained the situation. The customer went back to look at the invoicing and they must have bitched to my company because I got called in to the office and was handed a bonus check soon thereafter.

Still looking for a new job, though...

[By-Tor]

[ QUOTE ]
Update:
One of the other consultants on the trip didn't get paid for the OT as a result of a billing problem which led the customer to ask me if I had been paid for the OT. I said that I hadn't and explained the situation. The customer went back to look at the invoicing and they must have bitched to my company because I got called in to the office and was handed a bonus check soon thereafter.

Still looking for a new job, though...

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glad they did the right thing.