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Type of Non-Exempt Work
Types of Exempt Work
On-Call Work
Double Damages
Don't Do it Yourself

Information Technology Overtime

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Information Technology (IT) jobs cover a wide range of technologies and job functions. Because of the critical nature of this type of work, many employees are required to work long hours, respond to emergency pages at all hours, and perform major updates on "off-hours" -- usually on the weekend.

Unfortunately, many employers feel that paying a salary is the only thing they are required to pay to IT workers. However, the vast majority of IT workers are entitled to overtime, even when paid on a salary basis. This page will go over the issues relevant in this field.

I have added a page in which I evaluate various computer and technology job descriptions to determine whether those positions are entitled to overtime or not.

I have also posted a video on Information Technology overtime that covers some of the recent developments of the law in this area. Please view this video as it gives a great overview of the subject.

Nothing in the foregoing discussion is meant to be legal advice and does not serve to establish an attorney-client relationship. Any statements, on this page or elsewhere, are not guarantees of any outcome.

Types of Non-Exempt Work

If you spend most of your time doing any combination of the following, you are entitled to overtime:

  1. Analyzing, troubleshooting, and resolving complex problems with business applications, networking, and hardware.
  2. Installing, configuring, or testing new computers, applications, networks or hardware based on user-defined requirements.
  3. Creating or troubleshooting network accounts (logins) and other business application user accounts.

As you can see, this list covers everyone from help-desk personnel to network engineers. In addition, even though you may be a high-level network engineer and posses advanced certifications such as the CCIE, you would still be entitled to overtime if you work on the above tasks.

You should note that the U.S. Department of Labor has recently published an opinion letter that clearly marks these IT positions as non-exempt. You can read this letter here. If your job duties sound at all like what is described in that letter, you should contact me immediately to get your overtime paid.

You can also be entitled to overtime if you supervise other people. Don't think that just because you are a "team leader" or "manager" that you are not entitled to overtime. Unless you spend more than 50% of your time supervising these other people and not doing regular IT work, then you are entitled to overtime. In addition, you must meet all the other requirements of the Executive Exemption (ability to hire/fire, supervise a department, etc). Very few people in the IT department meet these requirements.

Types of Exempt Work

Not everyone is entitled to overtime. If you spend more than 50% of your time on the following, then you will not be entitled to overtime. Keep in mind, that nearly every position does a little of the following. However, to be exempt, you must spend 50% of your total working hours on the following:

  1. Design client computer configurations.
  2. Analyzing and selecting new technology.
  3. Formulating management polices for user rights and security.
  4. Negotiate with vendors to determine price and technical functionality.
  5. Advising upper management about IT issues in the company.

As you can see, these are more management level tasks. In a mid size company (500 employees), probably 1 or 2 people perform these exempt duties.

On-Call Work

A major problem in the IT field is the use of on-call employees. Frequently, employees in the IT department alternate wearing a pager each week. That is your wear the pager for a week and then pass it on to another employee.

In general, time spent on-call is generally not considered time worked for overtime purposes. That is, the time you spend simply carrying the pager is not compensable However, any time that you spend answering pages, checking email, responding to a problem or any other type of work related activity is compensable and you need to be paid for it. If you already worked an 8 hour day or a 40 hour week, then the time needs to be paid at overtime.

You can also be entitled to a minimum of 2 hours work if you report to your employers place of business rather than solving the problem from home. Thus, if you have to drive into work to replace a piece of hardware, you are entitled to at least 2 hours pay, even if you only spend 10 minutes on the task.

I will note that under certain extreme conditions all on-call time will be counted as work time. If your on-call time is so restricted by the employer that you can not engage in any private pursuits such as sleeping, reading a book, or watching television, then you should be paid for all the time spend on-call, not just the time actually working. You should note that it is not enough that you must carry a pager and respond within 15 minutes. However, if the number of pages and the time spent responding takes so much of your time as to not really give you any free time, then you should be paid for it.

Examples:

You are eating dinner with your wife, your pager goes off and you immediately have to leave to fix a problem. This happens every weekend. It is not likely that this would be sufficient to make all your on-call time paid for. You would be paid for the time actually spent responding, but one inconvenient pager call a week will not entitle you to be paid as if you worked 24 hours a day, 7 days a week.

This weekend your company just completed a new upgrade. Over the next week you get 3-4 pages per night that must be responded to immediately. Each page takes 1-2 hours to resolve. You would likely be entitled to pay for the entire time spent wearing the pager for that week (168 hours of work). This is because the number of calls and the length of time are so excessive that your really can't get a single night's sleep, go to a movie, watch television, or anything else. You should note that during this time, you worked your normal 8 hour day and then spent 6-8 hours a night responding to pages. Thus, regardless of your on-call time, you actually worked 14-16 hours each day. Thus, it is not much of a stretch to push this to 24 hours a day.

Liquidated Damages

Most IT workers are entitled to overtime under both California and Federal law. Because they are covered by federal law, IT workers ar entitled to liquidated damages for any unpaid overtime. That is, they are entitled to "double damages" for any unpaid overtime. I have put together an video on liquidated damages that you can view here.

You should note that liquidated damages are not recovering under both California and Federal law. Federal law, all by itself, allows for double payment for unpaid overtime. Many people think that California law is always more favorable than Federal law -- and usually it is. However, in this case, IT workers frequently get significantly more money under Federal law because of the liquidated damages provisions.

Of course, the California Labor Board can not award you liquidated damages. As such, you should think very hard before you take a case to the Labor Board. You can read more about the problems with the Labor Board here.

Don't Do it Yourself

Many IT workers are entitled to overtime. If you work in this field, and feel you might be entitled to overtime, you should contact me immediately. It is generally not a good idea to print out the information on this page and take it to your HR manger. Frequently, employers are very hostile to employees who do this. You need to get an attorney who can protect all of your rights.

I have worked with many large companies to get IT workers overtime. Usually, it can be handled discreetly, especially if you no longer work there. However, every case is different and some cases require extensive litigation or arbitration before a result is reached. However, if your performed the work, your employer has a legal obligation to pay you for it.

 

Overtime Updates
January 2017: New minimum wage laws and overtime exemptions
December 2016: New federal regulations for overtime create confusing issues for California workers
New Computer Professional Law wage increase Jan 01, 2015
August 2013: Unpaid internships are illegal.
April 2013: California's executive exemption defined.
California Labor and Employment Law Blog
Meal Break violations can extend back four years
Information Technology (IT) overtime.
VIDEO LINK: Michael Tracy discusses Liquidated Damages for Overtime (QuickTime 6MB)
©2016 Michael Tracy

This website only provides general information about the overtime laws in California and is not meant to be legal advice and does not serve to establish an attorney-client relationship. Please note that labor laws are constantly changing and being interpreted by the courts and you should consult with an attorney to ensure that you have the most up-to-date information. Any statements, on this page or elsewhere, are not guarantees of any outcome. Michael Tracy is a licensed attorney only in California.