IMPORTANT – Do not sign any agreement in which you may be settling any rights you may have without first checking with an attorney that experienced in Labor Law.
On termination you may be offered a severance package in exchange for giving up your rights to back overtime pay. These rights could actually be worth well over $100,000 and you may lose them.
Many Labor Law attorneys will take a look at your situation without charge and give you piece of mind that you interests are protected.
One word can be used to best describe the California information technology (IT) industry this past year: layoffs. Although the technology industry grew overall, layoffs dominated as major companies continued to trim their workforce. The companies with the some of the most drastic cuts included IBM, Novell, Microsoft, Cisco, and Sun Microsystems. As a result many technology workers are starting off the New Year without a job or, perhaps even more disheartening, training their foreign replacements. An increasing number of tech companies are using L-1 and H1-B workers to reap the benefits of highly skilled professionals for a much lower cost than their American counterparts. This leaves California workers to train these new employees for little compensation, usually the promise of a few weeks of additional pay or a severance package. However, employees on their way out the door have rights and should not hesitate to milk the benefits due to them from their employers. Federal and state laws mandate that employers make a final payment of wages, overtime pay, and accrued vacation time at the time of a layoff or face stiff penalties.
Of particular concern for IT professionals is employers’ frequent denial of overtime pay. Despite popular belief, all employees in California are entitled to overtime pay unless they fall within a particular exemption or wage order. IT jobs encompass a wide range of duties and usually require long hours, working from home, and the ability to be “on call.” Unfortunately, many workers never see a check for their earned overtime, because their employers misclassify them as exempt from overtime pay. The determination of whether an IT employee is exempt requires a careful analysis of the employee’s duties and how they relate to the company’s overall operation.
The Department of Labor has opined that IT specialists whose primary duty “consists of installing, configuring, testing, and troubleshooting computer applications, networks, and hardware” do not qualify for the administrative or computer employee exemptions under the Fair Labor Standards Act. Many IT employees are also not likely to qualify for the executive exemption. Unless they spend over one half (51%) of their weekly work time engaged in managerial responsibilities, they will likely be non-exempt and therefore entitled to overtime pay. Examples of managerial responsibilities include negotiating on behalf of the employer, influencing company policy, and supervising others. It is important for employees to remember that it is the actual job duties and not the job title that determines whether an exemption applies. Employers often manipulate job titles, pay structures, or management levels to classify employees as exempt so as to avoid paying overtime costs; yet, they do this at the risk of huge penalties.IT workers who have been wrongfully denied overtime pay under federal law are entitled to liquidate damages. This means employees can collect double the amount of their normal overtime rate.
If you are an IT worker facing a layoff or otherwise suspect that you have been misclassified by your employer, now is the time to take steps to protect yourself against loss of overtime and other valuable benefits.
Strategy:
1. Request a full copy of your payroll records from your employer as soon as possible. Certain documents in your employee file, must be made available to you within 21 days of your request.
2. Gather all documentation establishing your wages and benefits immediately prior to the layoff, including itemized wage statements (pay stubs), W2 forms, a calculation of your overtime pay, proof of your total accrued vacation time, and a copy of your employer’s benefit plan.
3. Compile a list of your job duties and obtain the names of witnesses who can testify regarding your day to day work duties and hours worked, including supervisors, co-workers, industry contacts, etc.
4. Visit the human resources department and request a copy of your personnel file. This file will contain performance reviews, awards, contractual agreements and other items that will be beneficial to you. Remember you have a legal right to any documents that you have signed. It is also wise to copy all company policies, employee manuals, and other data that is non-proprietary and that you would have access to as an employee.
5. Remove all personal items from your place of work, including your computer. If you have created any personal files or installed software, copy and delete them. Be careful not to take anything that may be considered proprietary, such as customer lists, proposals, financial reports, etc.
6. Consult a qualified California labor law attorney to obtain an unbiased analysis of your situation. The above documentation will help to assess you case and obtain money to which you are rightfully entitled.
If you are an IT or computer worker in California, getting your overtime pay has become harder and harder- yet not impossible, if you know the rules of the game.
