California Employee Rights Advocate : California Labor Attorney & Lawyer : Southern CA Employment Law : Los Angeles, Orange County : United Employees Law Group

In California Quality Assurance (QA) Engineers, often work long hours and are often misclassified as exempt from overtime. Nevertheless, they might be entitled to California QA Engineer Overtime, because the employer has improperly classified employees as exempt when in fact they employee should be classified as non-exempt (hourly), and thus has failed to pay overtime. And In some instances, QA engineers have been classified as independent contractors, meaning the company is not even paying benefits.

More and more, overtime lawsuits are being filed against companies and some have been settled. For instance, Siebel Systems has settled to pay $27.5 million to about 800 software engineers, and IBM is settling $65 million to technical and customer support workers.

A quick Google of quality assurance engineer jobs posted on the Internet found the following tagged onto the job descriptions:

• You will work long hours (possibly some over time up to 10:00 PM);
• Must be willing to work overtime (Aerotek);
• Ability to work overtime as necessary on evenings and weekends (a mobile game company);
• Must be able to work overtime (Net Temps);
• Must be able to work overtime often (Interplace); and
• Willing to work overtime when requested.

Most of these positions are salaried. And chances are, these positions should be non-exempt according to California labor Laws, which means you are entitled to overtime. (Conversely, exempt means you are not entitled to overtime.)

According to the California Labor Code §515.5 (below), the following--a typical QA engineer job description posted by Yahoo--should be non-exempt and it will only be exempt if it meets the salary requirement of $37.94 hourly rate or salary ( based on a 40-80 hour work week) of the minimum monthly and annual exemptions at $6,587.50 and $79,050.00, respectively:

"You will contribute to the design and implementation of test plans, test cases and validation, by creating and using test tools of complex, multi-tier software. You will also interface with other QA engineers, developers, and product managers and operations teams to complete projects. You should possess skills in testing and implementing tests on components written in C++/Perl as well as testing API-based web applications. The ideal candidate should have a proven history and dedication to SQA processes, particularly Agile / Scrum testing and implementation."

If this job description sounds familiar, you are likely entitled to overtime. You should contact a California labor law attorney to find out if you have been misclassified as exempt; if so, you may be entitled to considerable overtime depending on your quality assurance engineer pay and how many hours you worked.

California Labor Code §515.5

(a) Except as provided in subdivision (b), an employee in the computer software field shall be exempt from the requirement that an overtime rate of compensation be paid pursuant to Section 510 if all of the following apply:
(1) The employee is primarily engaged in work that is intellectual or creative and that requires the exercise of discretion and independent judgment, and the employee is primarily engaged in duties that consist of one or more of the following:
(A) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications.
(B) 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.
(C) The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems.
(2) 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.
(3) The employee's hourly rate of pay is not less than forty-one dollars ($41.00) thirty-six dollars ($36.00), or the annualized full-time salary equivalent of that rate, provided that all other requirements of this section are met and that in each workweek the employee receives not less than thirty-six dollars ($36.00) per hour worked. 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.[The strike out text refers to pre-2008 law]
(b) The exemption provided in subdivision (a) 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 subdivision (a) for the purpose of creating imagery for effects used in the motion picture, television, or theatrical industry.

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It is not unusual for employees to reach into their own pocket to pay expenses that relate to their job. A typical list includes the following:

• Using your car for business
• Cleaning clothing required to be worn at work
• Purchase, maintenance or loss of tools and equipment
• Expenses related to attending training or educational materials
• Travel
• Cell phones
• Lodging and meals
• Entertainment

An easy way to figure out if an expense should be paid back to you is to simply ask yourself the following question:

“Is this an expense that my company expects me pay for their benefit?” If the answer is yes you are probably entitled to be reimbursed.

To state it another way, the law requires employers to pay employees for any business expenses that arise out of an employee’s reasonable performance of job duties.

For example, if an employee must drive a car (other than to commute to and from work), pay for client entertainment, or make cell phone calls then Section 2802 of the labor code requires the employer to reimburse the employee for the expense.

An employee is entitled to recover all or a portion of unreimbursed business expenses that was paid in the last four years even if he agreed to forgo reimbursement, took an amount that is less than his costs or agreed a salary or commission that was supposed to include reimbursement for these expenses.

This law also covers anyone who was misclassified as “independent contractor”. There are many instances where a person believes he is an independent contractor but in fact is an employee. It does not matter if the error was made by an honest misunderstanding or intentionally. It also does not matter if the misclassification was made by the employer or the employee. It is the law that decides who is an employee and all the rights given to employees.

The law specifically requires an employer who provides a fixed expense allowance or an enhanced commission rate, ensure that expense
reimbursement payments fully cover all necessary expenses. The enhanced portion of any compensation that is supposed to cover all expenses paid by an employee must be identified by the employer by setting forth the method or formula used.

It is the employer’s obligation to show that all expenses incurred by its employees have been fully reimbursed because Labor Code Section 2804 forbids an employer to permit an employee to waive the right to reimbursement. Employees must be reimbursed for all necessary expenses of the employer.

Employers are liable for business expenses even when an employee has failed to submit required expense reports. The law focuses not on whether an employee requests reimbursement but rather on whether the employer either knows or has reason to know that the employee has incurred a reimbursable expense. If the employer has that actual or constructive knowledge, then it must exercise due diligence to ensure that the employee is reimbursed.

An employee should not pass up his right to receive reimbursement because no claim was made in the past or there is little or no documentation. This could occur when an employee does not understand his rights was misinformed or was discouraged from making a claim.

Not only does an employee have the right to reimbursement for business expenses but has the right to recover attorney’s fees, interest and penalties.

We as California labor lawyers know that an employee is not like a company that has the money to pay attorneys to protect them. That is why our law firm provides representation paid solely from money that we recover from the employer. In other words we help level the playing field.

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 If you ordered a cell phone from a retailer and the phone was to be mailed to you, have you been charged for service before receiving the phone?  Sprint (S), among others, is one company that has elected to sell their phone through third party retailers.

It is not uncommon for some third party retailers to sell a cellular phone to a customer, and before the customer actually receives the cell phone, activate the service.  This violation is most common with third party retailers who sell phones for cellular companies but have the inability to activate the cellular services at the time of purchase. While this may seem like a small issue and only cost the cellular phone user a few days of service charges prior to receiving the phone. Nevertheless, it is wrong. Moreover, when you consider that this violation affects potentially thousands of consumers, the damages add up quickly. 

When a single individual has common damages of many other individuals, class action treatment may be the most efficient to prosecute the company or companies committing these violations.  It would not be cost effective or efficient for the courts for hundreds or thousands of claims to be litigated. This is the reason why California class action cases are filed in many instances.

If you have purchased a phone through a third party retailer, you should speak to a California class action attorney to determine if your rights have been violated.

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