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Computer Professionals Update Act Targets Overtime for American Nerds

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Somehow tech and politics mix together about as well as oil and water.  Look at the current state of technology politics – the FCC took forever to finally quash the proposed merger between AT&T and T-Mobile, links are being drawn between finances and congressional support for SOPA and Protect IP, and arguments are being made about the state and future of net neutrality. 

See?  Whether you knew it or not, there’s a lot of tech stuff happening in the hallowed halls of our nation’s leaders.  All of these deal with statutes and laws about fair business practices and anti-trust issues – ultimately things that affect the American technology consumer.  But  a bill that was introduced in late October to the Committee on Health, Education, Labor and Pensions that went to the other side, and set its sights on the American technology worker instead.

The bill would expand the list of workers exempted from the Fair Labor Standards Act, to include many in the tech sector.  For those of you unfamiliar with FLSA, that means that they’re adding to the list of people who are exempt from the standard “you get a time and a half for overtime hours” rule. The bill, called the Computer Professionals Update Act (yes, ironically labeled the CPU), adds jobs that pretty much include IT and development from top to bottom.  From the text of the bill: “any employee working in a computer or information technology occupation (including, but not limited to, work related to computers, information systems, components, networks, software, hardware, databases, security, internet, intranet, or websites) as an analyst, programmer, engineer, designer, developer, administrator, or other similarly skilled worker,” whose primary duty is the following:

(A) the application of systems, network or database analysis techniques and procedures, including consulting with users, to determine or modify hardware, software, network, database, or system functional specifications;

(B) the design, development, documentation, analysis, creation, testing, securing, configuration, integration, debugging, modification of computer or information technology, or enabling continuity of systems and applications;

(C) directing the work of individuals performing duties described in subparagraph (A) or (B), including training such individuals or leading teams performing such duties; or

(D) a combination of duties described in subparagraphs (A), (B), and (C), the performance of which requires the same level of skill

The bill, which is sponsored by Sen. Kay Hagan (D-NC), keeps the existing language that applies this only to employees that earn at least $26.73 an hour.  And also let me be clear – this doesn’t outright ban these workers from making overtime for hours past 40.  It just means that companies that employ them are exempted from the overtime payment requirement.  But all said and done that doesn’t make it any better.  Given the current cost cutting measures that are in effect across industries in the United States, do you have trust that a company will still pay overtime if they’re not legally obliged to? 

Thankfully it doesn’t harm me personally; I’ve been in technology management for some time now and work on salary, so I was already sans overtime in the old rules.  But what about other folks in the industry?  There are a lot of nerds out there that serve as system admins and fill other necessary roles in the IT field that operate on hourly pay beyond the $26.73 pay threshold.  And some of them depend on overtime as part of their yearly income.

I’ve heard arguments ranging from outrage to “about time” to nothing more than “meh.”  It certainly would reduce costs for technology companies as well as most American companies with regard to their IT shops while stripping workers of their due funds.  As part of the tech world I of course don’t support this, as I feel that it passing it greatly devalues the skills tech workers have put in either a considerable amount of education or a considerable amount of work experience to accumulate.  With the increasing amount humanity relies on technology, specifically computer technology for their day to day lives, it seems like technical work is being not only devalued, but commoditized over time.

I’m not sure what the motivation behind this bill is, but Sen. Kagan mentioned that “the majority of bills and resolutions never make it out of committee.” What exactly is going on in North Carolina?

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  • Arch Conservative

    As another working in the IT field, this bill is totally ridiculous. It’s just more proof of the boundless hypocrisy of the Democrat party claiming to be for the empowerment of the middle class and then pulling a stunt like this.

    What’s going on in North Carolina? The same thing that going on in South Carolina. The left screwing the American people. IN SC big union and their political arm the NLRB are doing everything they can to prevent Boeing, a private company from employing South Carolinians at the new plant they have built. The unions claim that employees at the Boeing plant in Washington state, a union state will lose their jobs despite the fact that not one single employee in Washington has been let go. It is all too obvious that this is just another attempt by big union to exert as much control over private enterprise as possible. When Boeing finally says screw it, closes both the SC and Washington plants and sets up shop in China or India it will be entirely the fault of the union.

    There’s a reason union membership has shrunk to under 7% of the total private sector workforce. People have come to realize the destructive impact unions actually have on the job market and the economy.

    I’d be willing to bet Kay Hagen has never voted against giving herself a pay raise yet she feels entitled to limit the earning potential of millions of Americans. Maybe the tech workers in this country will get lucky and she’ll choke to death on a candy cane over the holiday season.

    Oh and I am well aware of the fact that I am bitching about overtime pay as an employee and unions at the same time. I don’t see this as hypocritical though as while unions did play a major role in the early 20th century in bringing about better working conditions and rights for employees they have since devolved into nothing but corrupt, greedy special interests that have no benefit to the average American. Any of you union jerkoffs don’t like that? Too f-ing bad! It’s the truth.

  • It

    This pisses me off to no end being a college student studying IT I absolutely enjoy this field and they’re fucking that up for me too. Those people need to just die.

  • Spicoli

    You’re interpreting that bill backwards. It’s adding a restriction that IT workers below a given pay rate cannot be considered a professional employee. Currently sysadmins and other IT jobs at any pay could be considered professional under the existing law.

  • Igor

    This is a bad bill. There’s no good reason to deprive workers of their earnings. Like many, I’ve worked in IT and Gone The Extra Mile, working weekends, etc., then getting stiffed on promises of overtime or “compensatory” time. But only once. The bosses are untrustworthy.

    It should be defeated.

    But It’s hard to see that this is “…proof of the boundless hypocrisy of the Democrat party claiming to be for the empowerment of the middle class and then pulling a stunt like this.” as well as your other rather florid claims.

    Here are the Senate sponsors of S.1747:

    Sen: Kay Hagan [D-NC]
    Sen. Michael Bennet [D, CO]
    Sen. Scott Brown [R, MA]
    Sen. Michael Enzi [R, WY]
    Sen. John Isakson [R, GA]

    It looks to me as though 3 of the 5 sponsors are republicans, including the sainted Scott Brown of MA.

    My info is from openCongress.org

  • mike

    thanks for the citation IGOR!

  • Will

    3 of the 5 are replublicans.. But one could argue these are only republicans by name and not by substance.. I am saddened by Scott Brown.. He’s not living up to the hype.. The rest have a history of playing both sides so it’s of no surprise.

  • http://www.shiawasseefriends.com Humility

    Democrat or republican, I’d like to hear more about the allegations made by Spicoli that this actually adds protection for those under that $26 mark. Is that true? Citations!

  • Adds protections? Not even – with citations.

    I am a systems/network administrator and also an attorney that has practiced heavily in FLSA, particularly applied to IT, and would like to ask everyone to write, call or otherwise contact your elected officials and fight this bill. Reading through these posts, I see an overwhelming theme that people think this bill doesn’t apply to them, so why bother fighting it. In particular, the most common theme is “I’m salaried, so it doesn’t matter.” I’ve run into this misconception for decades, with co-workers, clients and in companies, predominantly software development companies, in which I have served as an attorney and executive. The fact that a person is paid a salary does NOT, by itself, determine that a person is not entitled to overtime. Under the FLSA the worker must either be salaried, or must be paid a certain amount per hour PLUS the duties that the worker performs the majority of the time must be covered by at least one of the exemptions specified in the statute. These are historically referred to the “Salary Test“and the “Duties Test” and BOTH must be met. As a rule, the presumption under the law is that a worker IS covered by the FLSA and entitled to the protections afforded — overtime for hours over 40/workweek, compensation for all time actually worked – even that time worked out of the office in cases where people are expected to check e-mail-carry BBerry, and such, and even, in some cases (depending on how on-call is handled by the company) compensation for time spent on-call regardless whether any work is actually performed during that on-call period. The exemptions are supposed to be applied very strictly and very narrowly, and the employer has the burden of proving that the employee is exempt, and, therefore, not entitled to those protections. (BTW, the salary test under the FLSA specifies $455/week if paid salary; the $27.63 figure that everybody keeps referencing ONLY applies to those paid on an hourly basis. The CPU Act does not raise the level of salary that would satisfy the “Salary Test” component of the exemption – it will still be approximately $21,840/year, so this bill would dramatically increase the surface area of the “duties test” without any increase in the “salary test.”)

    This is America, and nothing is against the law unless somebody complains about it; in legal terms, that means complaining in court, not just grumping and groaning at work. Non-payment of OT for IT has gone on for so long that most workers and companies believe it is correct. Recently (bearing in mind that complaints can take years to run their way through the courts), IT workers have started complaining, and more and more companies are finding out that everyone that works in IT isn’t exempt, even if they are paid a salary, and even if they are paid really big bucks. In fact, the increasing number of class action suits seeking overtime for IT jobs is most likely why this CPU Act has been introduced.

    This is exactly the point. Under the current law, you have the right to have the company prove that you shouldn’t be paid overtime and, salary or not, the current law ASSUMES that you SHOULD be paid overtime. Under the current law the analysis is also based on the duties ACTUALLY performed; it is NOT dictated by title or by job description any more so than being dictated solely by being a “salaried” employee. With regard to IT work, this issue is being proven more and more frequently as companies are sued for back overtime by SAs, DBAs, Network admins, IT security folks, etc. even when those people are “salaried” and covered by titles such as ‘Network Manager’, Security Manager, etc.

    Another common theme is the issue of getting time off to make up for extra hours worked. Again, the current statute has very, very narrow acceptance of this practice and, frankly, if you don’t work for a government agency and your employer is doing that, then it is probably not legal.

    If this bill gets passed into law, then the change will basically create a presumption that if you work in IT, in virtually any capacity, and make more than $455/week salary, then you will be exempt. For any of you that missed the part of this where I said that, under the current law, there is a significant likelihood that you actually should be getting overtime pay and just don’t know it, I’ll clarify that if this bill passes, then you may never even be able to find out whether you should be getting paid overtime. For anyone who missed the part where I said the “salary test” will remain at approximately $22K/year (including the folks who “think” they are contractors instead of employees and those that are paid hourly, I’ll ask – what do YOU think is going to happen to workloads and the level of IT pay overall if companies can pay a salary of $22K/year AND there is virtually NO QUESTION of whether overtime can be avoided??? (BTW-any contractor that missed the “think;” there is another analysis under the FLSA that is used to determine whether you are really, legally, a contractor for purposes of overtime; the fact that you signed a “contract” may not be as decisive as you “think”.)

    Obviously, there is no way I can provide a legal opinion to anyone here whether or not they should be getting paid overtime in their past, current or future job. I can share my opinion, however, that anyone who thinks this bill won’t directly affect them really needs to think long and hard about that. If nothing else, it affects you because those people in Congress work for you just as much as they work for the companies that drafted this bill. They should represent you just as much as they represent those companies that will benefit from this bill. They should not vote on, let alone pass this bill without making a full accounting for whether and how it COULD affect the workers rather than just railroading it through and rubber stamping it because of how those companies say it will affect them.

    All of us that could be affected by this bill are most obviously capable of exercising the GoogleFu and tracking down the laws and cases relevant to the issue (seminal cases for us can all be found pretty easily online—to assist, see FOOTNOTE.) Take the time to read the FLSA exemptions as they are currently; take the time to track down and read the cases (the ones most directly on point for “Computer Professionals” are actually oddly more full of technical job description stuff than pure legalese, so I’ve found most geeks can get the gist of them pretty easily and pretty quickly — and are most often very much surprised to find out that what they thought about IT overtime wasn’t quite so sound.)

    Make your own EDUCATED decision whether and how this bill will affect you. Don’t take your employer’s word for it. Don’t let YOUR elected officials make the decision for you and without your input. Most importantly, don’t let the companies force this through Congress and force it down your throat without exercising YOUR right to be heard, YOUR right to be counted, and YOUR right to be represented. Write your Senators and Representatives — and share this with everyone you know in IT so they know about it and so they can make their elected officials work for them too!!!!

    FOOTNOTE: See Martin v. Ind. Mich. Power Co., 381 F.3d 574, 581-84 (6th Cir. 2004) (IT Support Specialist responsible for installing and upgrading hardware and software, configuring desktop computers, and testing and troubleshooting equipment is not exempt as administrative employee under pre-2004 regulations because such work is not directly related to management policies or general business operations and is not of substantial importance to management or operation of the business); Turner v. Human Genome Scis., Inc., 292 F. Supp. 2d 738, 745, 747 (D. Md. 2003) (although employees responsible for troubleshooting and correcting hardware and software problems and network connectivity issues utilized “knowledge and skill to solve computer problems, their primary duties did not involve discretion or independent judgment as required” under pre-2004 administrative exemption); Burke v. County of Monroe, 225 F. Supp. 2d 306, 320 (W.D.N.Y. 2002) (employees whose work included installing and operating computer networks, analyzing hardware and software problems, testing, and problem solving did “highly-skilled work,” but these were “routine duties without the requirement of discretion and independent judgment” under pre-2004 administrative exemption). See also Pabst v. Oklahoma Gas & Electric Co. (10th Cir. 2000) (analyzing whether the “on call” duty of Systems and Network Administrators deprives employees of the ability to engage in personal activities to the point that the employee is ‘engaged to wait’ rather than ‘waiting to be engaged,’ thus rendering the entire period compensable rather than just the time spent responding).

  • Ron

    Well if you notice and do a little leg work you will find that a great number of republicans in congress support this bill, so it isnt a left wing thing.