Re: Why you qualify for Overtime Pay; Fair Labor Standards Act; class-action lawsuit against Apple

Appears that all us System i professionals should be hourly employees and
get paid for overtime, according to this class-action lawsuit.
We do a lot of rote, repeatable tasks, with little exercise of our own
judgment, creativity, vision, leadership and autonomy.


http://www.cio.com/article/print/443113



*Fair Labor Standards Act: Six Things Tech Workers Need to Know*

– Meridith Levinson, CIO

*August 11, 2008*


/snip 1. The class-action lawsuit <http://www.cio.com/article/441818> that
a former Apple <http://www.cio.com/article/443113/subject/Apple+Inc.>network
engineer filed last Monday has put tech workers' relationship with
the Fair Labor Standards Act (FLSA) into the spotlight. Many IT pros are
watching the case with interest since it boils down to a pocketbook issue:
compensation for overtime.


/snip 2. At issue <http://www.cio.com/article/442166>: are networking
professionals—network engineers, network administrators and network support
staff—covered by the FLSA? The plaintiffs contend that Apple misclassified
them as exempt from the FLSA so that the company would not have to pay them
for overtime. Apple will have to prove that these workers are in fact exempt
by demonstrating that their jobs require independent judgment and
discretion, and that they're not simply carrying out repeatable tasks,
says Jahan
Sagafi <http://www.lieffcabraser.com/bios/sagafi.php>, a partner with Lieff
Cabraser Heimann & Bernstein <http://www.lieffcabraser.com/ourfirm.htm>, the
law firm that represented
IBM<http://www.cio.com/article/443113/subject/IBM+Corporation>workers
in their class
action lawsuit against Big
Blue<http://www.cio.com/article/17158/IBM_Allegedly_Denied_Workers_Overtime_Pay>in
2006. (The case was settled for $65 million in 2007. It was the
biggest
settlement of such a suit to date.) [Editor's Note: A previous version of
this story incorrectly stated that the case was settled in 2006.]


/snip 3. The administrative
exemption<http://www.dol.gov/esa/whd/regs/compliance/fairpay/fs17c_administrative.pdf>is
the most complicated, says Sagafi. "It hinges on whether the employee
'exercises independent judgment and discretion with respect to matters of
significance' for the company," he says, quoting the law. In other words, if
a professional exercises his or her own judgment, creativity, vision,
leadership and autonomy in performing his or her job duties in a core area
of the business, he or she is likely to be exempt under the administrative
exemption.

[ Do you exercise judgment, creativity, vision, leadership and autonomy in
performing your job duties?

/snip 4. "If you don't exercise independent judgment, if you perform rote,
repetitive tasks in accordance with guidelines, protocols, checklists or
established procedures, you're not likely to be exempt under the
administrative exemption because you're not exercising discretion. You're
just following the rules," adds Sagafi.


/snip 5. The computer professionals exemption mainly applies to computer
systems analysts, computer programmers, software engineers and software
developers whose primary duties consist of some combination of design,
development, documentation, analysis, creation, testing or modification of
computer systems and programs, and who earn at least $455 per week on a
salaried basis. It does not pertain to help desk workers or to employees
involved in the manufacture or repair of computer hardware.

/snip 6. Sagafi points to the work IT professionals have to do to update
virus protection software or to diagnose problems with routers as examples
of rote, repeatable tasks that don't involve a lot of personal judgment.
"You get an alert from a third party software vendor, and you know what the
steps are [to install those updates] because you did it last week. There's a
right way to do it and not a lot of choice in the matter," he says. "Or, if
there's an error showing up on the monitoring software with respect to a
router, you know you have to check 11 different aspects of the router and
when you find the thing that is wrong with the router, you fix it, and
there's only one fix and there's not much choice in the matter."
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