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

In this day and age of a computer driven society a substantial amount of technical expertise is required to handle these complex systems which weave hardware and software together in order to maintain computer systems. Those employees working on the front lines whose primary duty is to respond to breakdowns that occur in the systems must diagnose, troubleshoot and resolve complex problems. The fact that this work can require extensive training is not the key criteria for classifying such an employee as "exempt" from the payment of overtime. According to California Labor Law Attorneys the key interpretation is set forth under federal law under the Fair Labor Standards Act (FLSA). In opinion letter (FLSA 2006-42, dated October 26, 2006) published by the Department of Labor (DOL) this issue is discussed with regards to the job of an IT Support Specialist.

Two possible exemptions are discussed, the administrative exemption and the computer employee exemptions.

In looking at this analysis it is important to keep in mind that both the federal labor laws and state of California Labor Laws require employers to pay nonexempt employees a minimum wage for all hours worked and an overtime premium equal to at least one and one half times the employee's regular rate of pay for all hours worked in excess of forty hours in one week.

ADMINISTRATIVE EXEMPTION

The "white collar" exemptions provide overtime pay exemptions for any individual employed in a bona fide executive, administrative or professional capacity as those terms are defined in 29 C.F.R. Part 541. In order for this exemption to apply not only must the employee devote a majority of his or her time to analyzing, troubleshooting, and resolving complex problems with business applications, networking, and hardware but the employee must be compensated at the rate of at least $455 per week and has, as his or her primary duty, the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers. Additionally, the employee's primary duty must include the exercise of discretion and independent judgment with regard to matters of significance.

In meeting all these requirements most employees are not found to "exercise discretion and independent judgment with regards to matters of significance" because that term requires the making of decisions that have significant impact on the running of the company that the employee works for. As this term is applied it relates in most instances to upper management who set the course of operations and the overall direction of the company.

The fact that the work is complex or highly specialized along technical lines or that the employer will suffer significant consequences or losses if the employee does not perform the job properly does not automatically mean the work is significant to the management or general business operation of an employer. If the employee meets some but not all of these requirements this exemption will not apply and the employee must be paid overtime unless a different exemption applies.

COMPUTER EMPLOYEE EXEMPTION

There is an alternative exemption Under Sections 13(a)(1) and13(a)(17) of the FLSA, in which a computer systems analysts, computer programmers, software engineers, and other similarly skilled workers in the computer field who meet certain tests regarding their job duties are eligible for exemption from both minimum wage and overtime pay as professionals. In order to qualify for this exemption, the employee must be paid on either a salary or fee basis of not less than $455 per week or, if paid on an hourly basis, not less than $27.63 per hour.

Furthermore, this exemption will only apply to employees whose primary duties consist of 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 design, documentation, testing, creation or modification of computer programs related to machine operating systems; or a combination of these duties. Examples of employees who qualify for these duties include computer systems analysts, computer programmers, software engineers, and other similarly skilled workers.

It should be noted that job title alone does not determine the employee's exempt status.

SUMMARY

The rules relating to the various criteria that the employer must meet in order to classify an employee as exempt from receiving overtime. It is important to seek the advice of a California Labor Law Attorney. In many instances initial advice may be given without charge. If there is any doubt the chances are that the position is not exempt from overtime.
 

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United Employees Law Group through this blog, its website and direct discussions by phone, provides information on a multitude of employment issues to those seeking help with California Labor Law issues.

The laws and rules dealing with employment are extensive and complicated. Although there maybe "quick answers" those answers may only scratch the surface and may not provide adequate guidance without a more thorough review. In many instances there is substantial money at stake not to mention other important rights that should be protected.

When someone calls us looking for help, we understand that they are trying to navigate an unfamiliar area where the stakes are high.

This firm has prosecuted well over 1000 cases. Some of which include class action cases against some of the largest Fortune 500 companies. Each of these cases requires an investment of substantial economic resources. This requires that we selectively choose those cases we believe have the greatest chance of success.

To better understand the process the following is an overview of how we proceed when someone seeking help contacts us.

POTENTIAL CLIENTS ARE SCREENED

United Employees Law Group prescreens all clients before their case is accepted. Potential clients are taken through an in-depth analysis to determine the strength and value of their claim.

ANALYSIS OF PRELIMINARY DOCUMENTS

Potential clients are required to send in initial documents for preliminary review. Documents may include pay stubs, job descriptions, along with an employee handbook and evaluations.

FINAL REVIEW

All information provided by the potential client then goes through a final review to determine if the case can be accepted.

CLIENT FEE AGREEMENT

If the case is accepted, a fee agreement is sent to the client, this agreement sets out the scope of services, the clients’ responsibilities and the fees charged. All expenses are advanced by the law firm. No fee or costs advanced are collected, except out of monies recovered by the client. In other words, all work is done and expenses are incurred at the sole risk of the law firm.

INITIAL SCHEDULING OF ALL ACTIONS ON CASE

The first step is to record all information in a specialized computer program that coordinates calendared deadlines, phone calls, meetings and to do's. This information is continually being updated as the case progresses. This same program cross-references all documents and contact information of all parties. For example, the initial steps scheduled include the preparation of various letters along with the entry of a follow-up date.

INITIAL COMMUNICATIONS AND ANALYSIS

A notice is sent to the California Labor and Workforce Development Agency as well as a letter to the employer explaining the nature of the claim and an offer of early resolution.

An investigation of the employer is conducted and a detailed computation is made of unpaid wages, interest and penalties.

DISCUSSIONS WITH CLIENT

Numerous contacts and discussions are made with client in order to refine the information necessary to evaluate the value of the claim and to answer questions that the client may have and to discuss the client’s settlement objectives.

PREPARING FOR LITIGATION

An old and true military motto from Flavius Vegetius, Renatus circa 375 AD: says “If you want peace, prepare for war.” 

This is also good advice when it comes to fighting for the rights of our clients. It is for this reason that we prepare for the possibility that our resolve will be tested and we therefore work closely with our clients to gather facts, documents and witnesses. Although this requires work from both our client and our firm the results are well worth the effort.

SETTLEMENT OR TRIAL

Because this is an unfamiliar process most clients are naturally apprehensive about the prospect that this matter may go all the way to trial. Although a substantial amount of work is done in anticipation of a possible trial, it is much more likely that a settlement will be reached and a trial will not be required. As a matter of fact over 95% of all cases are successfully resolved by settlement between the parties.

INFORMATION IS POWER

Because California Labor Law is complex and could involve substantial sums of money it is important that you seek advice from a California Labor Law Attorney. In most instances this service is provided without charge so you have nothing to lose and everything to gain.

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A simple yet common question in the regard to California Sexual Harassment has to do with whocan sue. The simple answer is that any employee who works for a company can sue for sexual harassment. Furthermore, sexual harassment does not have to be perpetrated by a member of the opposite sex. California sexual harassment laws protect victims of same sex harassment whether or not the perpetrator is homosexual or not. If you feel that you have been the victim of sexual harassment, it is important that you contact a California Labor Law Attorney immediately.

A second common area of question is the myth that there must be touching to be sexual harassment. Nothing could be farther from the truth. California sexual harassment can include a large range of inappropriate behaviors that include but are not limited to not only touching, but promotion of retaining of employment in exchange for sexual favors, unwanted sexual comments, leering or other visual harassment, offensive materials, posters and jokes.

A third misconception is that sexual harassment must occur only in the workplace. In actuality, sexual harassment may occur in a wide variety of business, professional or service relationships. Employees should become familiar with California Civil Code of Procedure 51.9 to be clear on which relationships are covered.

A fourth misconception is that an employee must be the direct victim of sexual harassment in California in order to potentially file a claim. This is incorrect. If the sexual harassment permeates the work place of the employee even if the harassment is not directed at the employee, but rather happens in the presence of the employee. An important point, however, is that the harassment must be severe and happened to interfere with the employees work performance. This “severe” standard is typically upheld if there is sexual touching.

A final misconception is that an employee cannot win a sexual harassment case without witnesses or hard evidence. This is untrue. While, witnesses and evidence help a case, “he said, she said” cases have been decided in favor of the plaintiff if the court feels the plaintiff is more credible than the defendant.

If you feel that you have been the victim of sexual harassment, it is important that you contact a California labor law attorney immediately. The statute of limitations is strict in this area of labor law, so it is imperative to talk to a California labor lawyer at the earliest possible time so that your case can be assessed.

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What does the CALIFORNIA LABOR LAW require IF AN EMPLOYEE IS ON-CALL AND MUST RESPOND QUICKLY TO WORK ASSIGNMENTS; IS THE EMPLOYEE ENTITLED TO BE PAID DURING THE PERIOD HE IS ON STANDBY?

HISTORY:

ALARMCO is engaged in the business of providing security alarm services to retail businesses throughout California. Specifically, ALARMCO provides equipment, installation, repairs and maintenance services.

In order to provide these services, ALARMCO maintains operating agreements with its customers to provide repair and response services. To provide these services, ALARMCO employs a fleet of technicians.

When a service call is requested ALARMCO requires that the technician immediately report in an ALARMCO vehicle to the repair site in uniform.

The practical effect of this on-call schedule and the on-call requirements is that the technicians are effectively under the control of ALARMCO while on standby during the entire on-call week. As a practical matter, the response time and the additional restrictions on the use of the company vehicle and the clothing requirement, means that the on-call technicians must remain at home next to their phone and within five minutes of their ALARMCO vehicle. The technicians are severely limited in the engagement of personal pursuits during the on-call time because of the specified time requirements.

Because they must respond immediately to all calls means that the technicians cannot go to dinner or a movie, attend a concert, travel for a weekend getaway, or have a beer while they are on call wherein they are subject to receiving a call that requires driving in an ALARMCO vehicle to perform on site repair services.

On-call status places technicians in a state of constant readiness 24/7 outside of their regular 40 hour work schedule during the standby week. ALARMCO technicians are expected to respond day or night, dropping all other activities including sleep and meals, and remain on the job until it is completed.

The work required of the technicians while on standby is so regularly scheduled and frequent that the time spent waiting for call requests should be compensable as the technicians are not able to engage in personal pursuits during these standby periods.

ANALYSIS:

On-call time for the technicians constitutes employer “controlled standby” which must be compensated. The legal test as to whether standby time is compensable work time was established by the California Supreme Court in Madera Police Officers Association v. City of Madera, 36 Cal. 3d 403 (1984)

In reaching this conclusion we adopt a two-step analysis. We first examine whether the restrictions on off-duty time are primarily directed toward the fulfillment of the employer’s requirements and policies. Second, we analyze whether the employees’ off-duty time is so substantially restricted that they are unable to engage in private pursuits.

Madera, supra, 36 Cal. 3d at 409.

The on-call schedule, coupled with the strict requirements for response time, arrival time and resolution time substantially restricts the technicians’ off-duty time, rendering ALARMCO liable for all the waiting time spent by the technicians during the standby periods.

Applying the two step process under Madera to ALARMCO’s policies and practices we find that ALARMCO requires that service calls be responded to immediately. The on-call and response time requirements are all directed towards the fulfillment of ALARMCO’s uniform contractual obligations to its customers and in accordance therewith technicians are graded not only on “response” time but also on the time spent actually resolving the call. As a result, the de facto requirement is that technicians drop everything when a call is received, drive to the destination and resolve the service request. These requirements substantially restrict a technician’s personal time while on standby, that he is effectively unable to engage in private pursuits.

SUMMARY:

Simply being on-call is not enough under Madera for standby time to be compensable. The Madera Court affirms that “on-call status, coupled with other factors is required to entitle an employee to compensation.” Madera, supra, at 411. In this situation technicians are not only on-call but are required to immediately respond and resolve the equipment malfunction and do so by reporting in an ALARMCO vehicle while in uniform. Given the high frequency of service calls along with the factors stated above the technicians are effectively subject to the “control” of ALARMCO while on-call.

In reviewing situations such as this whereby various factors must be weighed and considered it should be noted that the wage and hour laws of California are remedial enactments for the “protection and benefit of employees” and therefore the “statutory provisions are to be liberally construed with an eye to promoting such protection.” Ramirez v. Yosemite Water Co., 20 Cal.4th 785, 794_795 (1999). Any doubts should be resolved in favor of the employee.

If you have any questions regarding your entitlement or rights under the California Labor Code consult with a California Labor Attorney who specializes in labor law. In many instances your questions may be handled without charge based on the policies of each law firm.

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