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EmplmntLaw1
EmplmntLaw1,
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We understand that as exempt employees, we can be expected

Customer Question

We understand that as exempt employees, we can be expected to work beyond the normal 40 hour work week, but we believe we are being exploited, and possibly illegally so. We would like to know if this is legal, and what options we have available to us.

Just as a for instance, we are currently on a one month duration of travel to Wahiawa, Hawaii to support a computer security testing event. Even though we are required to enter only eight hours a day on our time sheets, and no time for the weekend days that we work. The customer is three years behind schedule on this project and over budget, and so is trying to get our work done on the cheap. I'm not an expert, but I believe the hours being demanded of us far exceed what is spelled out in the contract, that I'm certain specifies something in the neighborhood of 2080 work hours per year, including weekends and Holidays that are not to be worked.

We are working a grueling schedule that includes a one hour commute each way from our hotel to the Navy facility where we do our work. We depart at 6:00 AM in the morning and arrive at approximately 7:00 AM and work until 12:00-12:30, when we take a break for lunch. We resume work at approximately 1:00 PM until 6:30 or so, at which time we conduct a daily brief to talk about our progress for the day. Typically we depart the site around 7:00 PM for the one hour commute back to the hotel. We are then expected to work whatever additional hours are required to keep up with other ongoing administration and to generate a number of reports for status for different people.

Our employer is a small business defense contractor, and the customer is a government entity that awards defense contracts to companies large and small. Most of us are former or retired military and we are neither strangers to nor afraid of hard work. Our problem is that we are constantly told that these working hours, including Saturdays are not intended to be the norm, but we are working even longer hours now than when we were first told that, and I see no end point in sight. I asked our HR rep unofficially if we have any course of action available to us, and she said no.

I for one am looking for and have interviewed for another job, but as the lead, I feel a responsibility to my team to do what I can to put a stop to this abuse of our people. Even if I leave, this will continue with the next group they bring in to suck dry.

Thank you for any assistance/information you can provide.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  EmplmntLaw1 replied 1 year ago.

EmplmntLaw1 :

Unfortunately, the wage laws are not particularly friendly to computer-based employees - in that neither are they owed overtime (even if paid on an hourly basis) but can also be classified as exempt as long as they earn $455 per week. See these links http://www.dol.gov/whd/regs/compliance/fairpay/fs17e_computer.pdf http://www.dir.ca.gov/dlse/Glossary.asp?Button1=E#employee%20in%20the%20computer%20software%20field

EmplmntLaw1 :

So, you more likely than not do not have a legal remedy. Employees however are not powerless. A couple of things come to mind that you all can do. One is to call the department of labor wage and hour department for them to audit the employer in regard to its wage and hour practices. You can do that here http://www.dol.gov/whd/regs/compliance/fairpay/complaint.htm#.UOwFoG-RRTk

EmplmntLaw1 :

Another thing you can do is organize as a group and demand a higher wage or some sort of improved compensation for these extreme hours of work. You could even formally attempt to start an official union that the employer must negotiate with in all terms and conditions of employment. Your concerted activity would be completely protected by the National Labor Relations Act and you or other employees engaging in concerted activity could not be legally fired or retaliated against for union activity. Here is a good blog on how to form a union. http://www.unions.org/union-benefits/articles/how-to-start-a-union.html

EmplmntLaw1 :

If you need clarification or have follow-up questions regarding this matter, I will be happy to continue our conversation – select the Reply to Expert or Continue Conversation button. If you are otherwise satisfied with my response, please leave a positive rating as it is the only way I am able to build my expert ranking. Thank you, XXXXX XXXXX wish you all the best with this matter.

Customer: replied 1 year ago.

I'm a bit confused--both you and one of these documents say $455 weekly (~$23K) annual minimum, but the Division of Labor Standards Enforcement document says ~$39 hourly minimum (~$81k annual). That's quite a difference. I earn more than the $81k amount, but some of my more junior team members do not. I'm also curious whether fringe benefits and nontaxable or deferred tax benefits figure into that amount--health insurance, 401K matching, etc.

 

Please clarify which amount is correct, does it include fringe benefits, and what can my people do about it?

 

Thank you!

Expert:  EmplmntLaw1 replied 1 year ago.
Yes that's the California minimum which must be paid a computer-based employee to be exempt from overtime; the federal minimum is $455. The federal law states that if state laws are more favorable to employees, then state laws control. Your fellow employees who are a) working more than 8 hours per day or b) working more than 40 per week and paid less than $81k (gross pay not including fringe or retiree benefits) are owed overtime. Such employees can file a wage claim with the state for overtime owed at this link http://www.dir.ca.gov/dlse/HowToFileWageClaim.htm
Customer: replied 1 year ago.
Sorry, just one more clarification which state laws apply? Our employer is headquartered in California but incorporated in Matyland or Virginia. We all live in California, but we're currently tasked and staying in Hawaii. Thank you!
Expert:  EmplmntLaw1 replied 1 year ago.
California law would apply. The link I provided above will direct employees on how to file a claim. Thanks and good luck.

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