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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 33376
Experience:  Retired (mostly)
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I work in IT company (in client office thro vendor company).Ever

Customer Question

I work in IT company (in client office thro' vendor company).

Every week i work 4-5 hours more than my regular 40 hours a week. Can i get over time?
My regular rate is $60/hour.
If not why not?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  wendy-Mod replied 1 year ago.
Hello,

I'm Wendy, and I’m a moderator for this topic.

We have been working with the professionals to try to help you with your question. Sometimes it may take a bit of time to find the right fit.

I was checking to see if you had already found your answer or if you still needing assistance from one of the professionals.

Please let me know if you wish to continue waiting or if you would like for us to close your question.

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Customer: replied 1 year ago.

Still need assistance...

Expert:  Fran-mod replied 1 year ago.
Hello,

Thank you. We will continue to look for a professional to assist you. Please let me know if I can be of any further assistance while you wait.

Best,
Expert:  socrateaser replied 1 year ago.
Hello,

Customer service asked me to review your question.

Title 8 Cal. Code Regs. 11040(h) exempts IT professionals from the application of overtime laws, if all of the provisions of the regulation are met, as follows:

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

(ii) 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.

(iii) 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 this exemption.

(iv) The employee's hourly rate of pay is not less than forty-two dollars and sixty four cents ($42.64). 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.

(i) The exemption provided in subparagraph (h) does not apply to an employee if any of the following apply:

(i) 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.

(ii) 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.

(iii) The employee is engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment.

(iv) 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.

(v) 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 on screen 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.

(vi) The employee is engaged in any of the activities set forth in subparagraph (h) for the purpose of creating imagery for effects used in the motion picture, television, or theatrical industry.

END REGULATORY TEXT


Assuming that you fall within the scope of the above-quoted regulation, then your employer does not have to pay overtime rates. However, the employer does have to pay regular time for the additional hours (presumably $60 per hour).

If you do not fall within the scope of the regulation, then you can file a wage claim with the DLSE.

Hope this helps.
Customer: replied 1 year ago.

Let me give you my role/responsibility details:


 


I was used to do repeatative work, worked using
remedy a ticket system, Monitoring servers,
follow specifications provided by others while work request creation,Creating or troubleshooting network accounts (logins)
and other business application user accounts, and Carried pager for a week every month



Client i worked at, was used to pay over time to employees doing same role earlier.


 


Do you think i should be getting overtime?


 


 

Expert:  socrateaser replied 1 year ago.
In my opinion, based upon your description of duties, you're entitled to overtime, because your work involves the "repair, or maintenance of computer hardware and related equipment." 8 Cal. Code Regs. 11040(i)(iii).

However, to be fair, it's a very close call, because most repair techs do not receive $60 per hour. Your straight-time pay suggests that the employer believes you are engaged in a highly specialized intellectual activity -- and it's possible that were I the judge presiding over your case, that I might rule one way or the other after hearing all of the facts.

Note: I worked for a DJIA hi-tech corporation for 10 years. I've done jobs similar to yours. Running a server system, network or website can be a highly intellectual activity (e.g., if you're designing networks and writing shell scripts, etc.) -- or it can be as dull as washing dishes (e.g., if you're crawling into the back of machines and under desks to change out adapter cards and motherboards -- or into walls, running cables).

But, the way you describe your duties, suggests that you are acting as a relatively low-level tech. If true, then you're entitled to overtime, no matter how well you're being paid for straight time.

Hope this helps.
socrateaser, Lawyer
Satisfied Customers: 33376
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

I have not worked as repair tech or "repair, or maintenance of computer hardware and related equipment."


 


I have worked in software, in a role of database administrator. But my tasks or role as i have explained above.


 


Guys getting good rate and working in software can't get overtime?

Expert:  socrateaser replied 1 year ago.
Based upon your personal refutation of the section of the regulation that would provide you with the right to overtime, you are therefore exempt under the wage and hour law applied to "Professional Employees" in California, and your employer can deny you overtime pay.

Title 8 CCR 11040(h)-(i) is extremely deterministic. You simply follow the various sections and if the job description falls entirely within the exemption, then the employee is not entitled to overtime pay. You described your activities as more of a repair technician, so I found a right to overtime. If you are really a database administrator, and you spend your time diagnosing errors in and writing search scripts and finding and remediating search database corruption issues, then you're not a repair tech -- your activities are extremely intellectual in nature, and so you are not entitled to overtime.

Hope this helps.


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